Nunavut courts will face backlog when they reopen, says deputy minister

Nunavut’s courts will face a backlog of cases when they reopen, says the territory’s deputy minister of justice, Stephen Mansell.

The Nunavut Court of Justice suspended its regular operations on March 16 in light of the COVID-19 pandemic. Circuit courts were also halted.

That meant all trials were adjourned and all in-person appearances were suspended across Nunavut.

“Our department is going to support the court as much as possible to deal with that backlog, but it will be a challenge,” Mansell said.

Originally scheduled to end on June 1, the suspension of regular court operations is now extended until July 3, Neil Sharkey, Nunavut’s chief justice, said in a directive issued on May 8.

All criminal matters that were adjourned to June 1 will be heard during a designated assignment court week from June 1 to June 5. During that week, the Nunavut Court of Justice will operate three telephone courts, and courtrooms will be dedicated to hear in-custody matters, out-of-custody matters, or cases heard by a justice of the peace, the directive said.

The backlog is a challenge that courts across Canada will have to deal with once they can safely open. For Nunavut, ensuring that backlog is addressed quickly and efficiently will require creative solutions and additional help, Mansell said.

To ease the process, Mansell said his department is looking to get support from additional deputy judges. In addition to Nunavut’s resident judges, the territory also uses deputy judges from other jurisdictions who can preside over Nunavut cases to help with busy dockets and circuit courts. 

Under section 33(1) of the Nunavut Act, the federal government can appoint any barrister or advocate of at least ten years standing at the bar as a deputy judge.

“Given the fact that all jurisdictions will be backlogged with cases, once the public health and emergency orders are lifted, it is possible that a number of our deputy judges will be unavailable to sit in Nunavut,” the department said. 

“We will hopefully get support from the federal government with respect to deputy judges…. They’re federally appointed, so responding to the backlog will be a partnership between ourselves, the Nunavut Court of Justice and the Government of Canada,” Mansell said.

Mansell said his department is also “exploring alternative means of court delivery” to help with the backlog, including videoconferencing.

Benson Cowan, chief executive officer at Nunavut Legal Aid, said he also has concerns about the impending backlog.

“We are going to experience, if circuits resume in the fall or whenever they come back, a massive backlog. It’s going to be important to create a framework to ensure there are enough resources from the court, from legal aid and from the Crown and in the communities to get through those backlogs in a way that ensure that the cases are being heard in a careful but also efficient and effective manner,” Cowan said.

The pandemic and the cancellations that followed have also highlighted the ongoing need for the Nunavut Court of Justice to modernize its operations, Cowan said.

“In a situation where we’re dealing with this kind of remoteness and we’re dealing with a range of challenges, I do think there’s more pressure on the Nunavut Court of Justice to modernize its approach to deal with these issues. And I think that they have not done that,” Cowan said.

“The Government of Nunavut and the Government of Canada have not invested in a modern, efficient, decentralized justice system in Nunavut.”

Although courts have been shut since March 16, a longer waiting period to access legal service isn’t completely unusual, Cowan said.

“It’s still a relatively short period of time in the slow pace of judicial proceedings. Probably for most people, applying for legal aid and having a matter proceed.… It feels like there’s probably a lot of delay already built into the system,” Cowan said.

“I don’t think we should have in-person sittings and I certainly don’t think that we should be flying people into the communities to do circuits, but I think we need to be looking at more creative ways to deal with matters directly.”

Despite the closures, Mansell said the court has continued to hear urgent matters via teleconference, including bail hearings, child welfare matters, applications under the Family Abuse Intervention Act and emergency protection orders. A number of urgent civil matters have also been heard, Mansell said.

“Nunavummiut can still access the courts and file documents with the registry online, and the court is doing as much as possible to ensure people have access while limiting public access to the physical building,” Mansell said.

Court closures present new challenges, opportunities for justice in Nunavut

When the courts first closed, lawyers in the territory had to adjust their practices to work remotely.

“The first few weeks were a challenge. A lot of our time was spent just on the logistical challenge of ensuring that we were able to support the organization working remotely and allowing them to communicate with each other and communicate with our clients and ensure that they are providing services,” Cowan said.

Despite the challenges, Cowan also commended the Nunavut Court of Justice for its quick decision to close the courts.

Lori Idlout, one of Nunavut’s newest lawyers who works at a private practice in Iqaluit, said working remotely doesn’t feel too unfamiliar.

“It’s a bit of a reminder of being a law student. I think all law students have a tendency to isolate themselves in their studies and their research. So I kind of fell into that trap,” she said.

Idlout said one of the most important things she’s learned during the pandemic is how to build trust with clients over the phone or through video.

“Very personal information that’s being shared with me would normally be preferred to be done in an office where they know they’ll have privacy. It’s been a bit challenging, but it’s also been a huge learning curve because reassuring clients is a skill that I think we always need to have as lawyers,” Idlout said.

Idlout also said she was impressed by the COVID-19 prevention measures taken by the Nunavut Court of Justice.

“They’ve made every effort to make sure that needs are being met even as challenging as it is. They’re trying to find ways for us to file documents when we need documents filed in the court. They’ll try to find us judges if we need them really quickly on an emergency basis. There are wonderful things that have been done to make sure people’s legal needs are being met,” Idlout said.

“And private practitioners like myself, we’re doing the best we can to continue to meet their needs. Part of the reason why I became a lawyer is because I wanted to be able to offer my utmost when it comes to assisting people. I’ve always been the kind of person that wants to help people.”

Video and telephone conferencing are still good tools for lawyers in Nunavut to reach their clients, despite the territory’s lower-bandwidth connections, Idlout said.

“When we’re sensitive to our clients’ needs and their emotions, I think that it’s shown that not all difficult issues need to be addressed face-to-face.… I’ve learned that I can still be compassionate even in these times. I can still show compassion through the phone or through videoconference,” she said.

Cowan agreed, adding that the pandemic has highlighted the need for infrastructure in Nunavut to facilitate remote hearings.

“I think there is an opportunity to sort of look back and say, OK, we’ve seen that the courts have been unable to function during this time…. And we’ve seen sort of the structure of the administration of justice be unable to have the flexibility necessary to ensure that there’s sufficient access to justice for people. So I think it’s time to pull back and have a look at what infrastructure investments are necessary in Nunavut in particular. Without extensive broadband throughout the communities, it’s very difficult to imagine remote hearings and remote processes functioning,” Cowan said.

Mansell, who started in the deputy minister role on April 27, said for the most part, his department has been able to continue its operations over the phone.

“We’ve had success in moving towards a teleconference and telephone model with our community corrections and community justice division and we haven’t seen much of an interruption in service, which we’re very happy about. But when possible, we would like to get back to face-to-face clients to ensure that we’re giving them the support that they need.

“We’ve ensured that our decentralized staff have been provided the necessary tools to work online.… The staff have gone above and beyond. We are open for business, perhaps in an amended model.”