Nunavut’s new single-level court system: how does it work?

ANNETTE BOURGEOIS
Nunatsiaq News

IQALUIT — The passage of Bill C-57 marks the last political and legal building block in creating a one-court-fits-all, single-level trial approach to justice in Nunavut. Nunavut by establishing the.

The establishment of the Nunavut Court of Justice is a significant change in legal administration, altering a nationwide system of justice that has existed in Canada since Confederation.

Bill C-57 is divided into two parts.

The first makes amendments to the Nunavut Act, the federal law establishing the Nunavut territory. For the most part, this section substitutes names — for example, “Nunavut Court of Justice” replaces “Supreme Court of Nunavut.”

This section also establishes a single-level trial court, at the superior court level, and names its judges “superior court judges” with all the powers of judges serving at both the territorial and superior levels of court.

The second part is the larger section of the bill and contains a vast number of amendments to such federal statues as the Criminal Code, the Judges Act and the Young Offenders Act.

One of its key components is that regardless of the power vested in the Nunavut Court that, no matter what case it’s considering, it retains its capacity as a superior court.

That means, if it’s hearing a preliminary inquiry, a lower court matter, it maintains the rights and privileges of the higher court.

“Essentially, that was to avoid the fragmentation of the functions of that judge into what we call a persona designata, to confirm in fact that when the court acts, regardless of the function it’s performing, it does so as a superior court. And that’s very important, in terms of this concept of a unified court,” Justice Canada’s criminal law policy counselor Karen Markham explained to a Senate committee last month.

At the territorial level, NWT MLAs last fall reviewed and amended the Judicature Act and the Justices of the Peace Act, both of which will be grandfathered to Nunavut.

Other territorial statutes, amended under the Nunavut Judicial System Implementations Act are as varied as the Family Law Act, Motor Vehicle Act, and Residential Tenancies Act.

Ottawa hires Nunavut’s judges

The federal government, in the Judges Act, pays the salaries, allowances and benefits of all superior court judges, who under the same law, are appointed by the federal minister of justice.

Amendments to that act pay Nunavut’s three judges about $220,000, the same salary and benefits as other superior court judges in Canada. They also allow the senior judge of Nunavut’s court to sit on the Canadian Judicial Council, made up of the country’s most senior members of the judiciary.

Prior to the changes, senior judges in the NWT and the Yukon rotated their Council seat every two years, thus sharing their membership.

Appeals

Bill C-57 does not establish a new court of appeal.

In the absence of an agreement to establish a pan-Arctic court of appeal for the three northern territories, an idea floated for years, the core of the Nunavut Court of Appeal, as with the Northwest Territories Court of Appeal, will be the Alberta Court of Appeal.

It will operate much the same as it does now, with the exception of summary conviction appeals, where a judge of the Nunavut Court will hear those matters.

In every other jurisdiction across Canada, the superior court acts as the court of first appeal for summary conviction matters.

But in the Nunavut court system, the mode of appeal had to be altered to protect the rights of accused persons, because no court can hear appeals of its own decisions — a situation that would exist in Nunavut’s single court structure without substantial changes.

Bill C-57 allows the first appeal of a summary conviction to be heard before a single judge of the Nunavut Court of Appeal. A second appeal, on more restricted grounds, would be heard by the full panel of the three judges sitting on the Court of Appeal.

So, instead of having appeals go to a superior court, as is done elsewhere in Canada, the matter would proceed directly to a court of appeal.

Appeals in indictable matters, and the appeal routes and grounds in matters heard by justices of the peace, have been maintained, and are handled as they are in the rest of the country.

“There may be members of the superior court in Yellowknife and in Iqaluit who would sit as judges of the Court of Appeal, but the bench will be fully and quite distinct,” said Howard Bebbington, a lawyer in the Criminal Law Policy Section of the federal Department of Justice. “So there isn’t a possibility of a panel hearing a matter that one member of the panel or a judge has heard before.”

Judging judges

In establishing the Nunavut Court of Justice, “prerogative writs” were abolished and replaced with “statutory reviews.”

In other jurisdictions, judges use prerogative writs to review decisions of other judges in such matters as warrants, subpoenas, preliminary inquiries and orders relating to public access to court proceedings.

“The concern about developing this structure is that when you do away with the inferior court level and put all of the trial at the superior court level, you have, by virtue of this, completely eliminated the prerogative writ review,” Bebbington said.

In other parts of the country, under prerogative writ, an appeal of a lower court’s decision would be heard by a superior court judge. But a superior court judge cannot review another superior court judge’s ruling.

Therefore, in Nunavut, where all judges will be superior court judges, the matter, under the new statutory review system, would be heard by a single judge of the Court of Appeal. It could also be appealed beyond that level to a three-judge panel of the same court.

“…[W]e have not accepted the premise that superior court judges are infallible,” Bebbington said. “In fact, we have attempted to, through a statutory mechanism, provide an analogous form of review.”

Youth court

The youth court in Nunavut will be the Nunavut Court of Justice.

Legislative amendments to the Young Offenders Act represent technical, not policy, changes to accommodate the operation of a single-level trial court.

“Whoever else in Nunavut is authorized to act in any capacity as a youth court — and I’m thinking specifically of justices of the peace — the only official able to do murder trials in youth court will be a judge of the Nunavut Court of Justice,” Justice Canada’s Markham explained.

A young person charged with murder in youth court can elect trial by judge alone, or by judge and jury.

Another diversion from the norm relates to summary conviction appeals.

In Canada, first-instance appeals, from a decision of a superior court judge sitting as a youth court judge, are to a three-person panel of a court of appeal.

To allow symmetry with Nunavut’s adult system, an appeal of a case heard by the youth court comprised of a judge of the Nunavut Court, will be to a single judge of the Nunavut Court of Appeal.

Officials within both the territorial and federal justice departments have discussed reviewing the new court structure in 2001.