There is a particular intimacy to the administration of criminal justice in the Northwest Territories.
Over the summer, I watched judges, Crown and defence counsel, court staff, and Crown Witness Coordinators travel between communities for circuit court, often returning to the same places and encountering the same people. In a territory of small and interconnected communities, the distance that can ordinarily separate a courtroom from the social conditions underlying the cases before it feels considerably smaller.
A person working with the Crown as a victim or witness on one file may appear before the court as an accused on another, requiring counsel who previously worked with them to be screened from the new case. The faces become familiar, as do the histories behind them. Colonial displacement, residential schools and intergenerational trauma intersect with housing insecurity, poverty, addiction, family violence and limited access to treatment. The causes and consequences of harm can exist uncomfortably close together.
I found that closeness difficult to reconcile at times. The criminal justice system organizes people into legal categories: accused, complainant, witness, offender, victim. Yet working within it, those categories often seemed much less socially distinct. People moved between them. Harm accumulates and travels through families and communities. Someone can have caused profound harm while also carrying profound harm of their own.
Working directly with victims and witnesses made the consequences of systemic violence seem more immediate. But it also made one question increasingly difficult to avoid: What does it mean for a justice system to see, at close range, many of the conditions producing the harm it adjudicates, while possessing limited tools to change them?
Judicial intimacy
I began to think about this closeness as a kind of judicial intimacy. Part of it is simply geographic and institutional. Judges live in the territory and repeatedly return to communities through circuit court. Lawyers appear before the same circuit of communities and work in the same relatively small legal community. Courts encounter not only recurring legal issues but recurring sociopolitical issues, communities, relationships and, often, people.
Gladue requires sentencing judges to consider the systemic and background circumstances that may have contributed to bringing an Indigenous person before the court, alongside sanctions appropriate to their circumstances and reasonable alternatives to incarceration. In the NWT, those systemic circumstances can feel particularly close to the surface.
NWT jurisprudence speaks about residential schools not simply as a chapter of Canadian history, but through their continuing effects in distinct communities. Judges speak directly to victims and accused people, in court, about trauma, addiction, incarceration, accountability and change. The person standing for sentence can remain visible as more than the offence that brought them there.
This foundation is how I came to understand the possibilities of Gladue. At its most meaningful, it seemed to do more than place additional information before a judge. It could change the frame through which responsibility itself was understood.
Someone can have caused serious harm and experienced serious harm. They can be an offender and a parent, family member, provider, hunter or valued member of a community. Recognizing those relationships does not absolve responsibility. It can make responsibility more relational: moving from what punishment does this offence warrant?, to what might accountability, repair and eventual reintegration look like for this person, in this place?
One NWT sentence has stayed with me for that reason. The offender was understood not only through his offence but as a skilled hunter who lived traditionally and provided food to Elders. Part of his sentence required 200 hours of providing traditional foods to Elders in his community to support relational accountability and restorative justice.
It is a relatively small example, and still an exercise of Canadian criminal law. But it illustrates something I repeatedly found myself looking for: moments when judicial discretion allowed accountability to be grounded in an individual’s relationships, culture and community, rather than treating justice as something separate from them.
The distance between recognition and remedy
Those moments also made the limits of the system more conspicuous. There were times when the forces contributing to a case seemed almost painfully visible, yet there was no available legal outcome capable of interrupting them. Knowing that someone needs treatment does not make treatment available. Understanding the importance of land, culture or community does not create an Indigenous-led sentencing alternative. Recognizing that housing instability contributes to a person’s circumstances does not give a judge somewhere safe to send them.
I came to think of this as a seeming architecture of remedial constraint: the boundaries of what people operating within the criminal justice system can actually do, even when they see clearly why something different might be needed.
Some of those boundaries are practical. Treatment, housing, incorporation of Indigenous-led justice processes and culturally grounded programming are unevenly available and cannot be ordered into existence from the bench.
Others are legal. Gladue exists alongside appellate precedent, sentencing ranges, sentencing principles of proportionality and parity, and statutory requirements emphasizing principles of denunciation and deterrence. The latter principles are tailored to concerns like the gravity of harm and the protection of victims. But they also may limit judicial discretion for restorative sentences.
That tension becomes particularly difficult to grapple with where Indigenous over-incarceration intersects with violence against Indigenous women and girls. I’ve seen Indigenous women and girls come in wanting to see charges dropped against someone whose repeated violence against them is documented on file. You don’t want to see them return in a worse state or, more devastatingly, hear that they are gone. Yet you know, and often they know, that while incarceration may interrupt the violence temporarily, it will not resolve the harms that brought either person into the system and break the cycle of violence. It may also strain income, child care, family responsibilities and prospects for rehabilitation.
The criminal justice system is often left responding to the consequences of deeper histories through tools built largely to adjudicate offences and impose lawful sentences, not to repair the social conditions that produced harm. And then another case arrives. And then another, and another. And as they do, you try to hold each one with care, to keep seeing the individual people and circumstances before you, rather than allowing case after case to blur into a painful pattern of intergenerational trauma repeating itself.
Vantage Point: From systemic change to institutional constraint
Sitting within the system and watching patterns continue, was perhaps the most personally challenging aspect of this opportunity. I had spent years before law school working at the systemic level of government. From that vantage point, I was accustomed to asking what could change: where policy was falling short, what governments could resource or build differently, and where there might be room, however imperfectly, for structural or even transformative change.
This summer, I worked within the gears of a system that largely encounters harm after it has already occurred. I saw people who had themselves been assaulted, exploited and violated go on to cause serious harm to others living through many of the same conditions. The question was no longer primarily how institutions might address the conditions producing that harm. It was what could legally be done for, or to, the person standing before the court now.
There was something both grounding and frustrating about that change in vantage point. Up close, the limits of the system and questions of institutional design became painfully visible in the lives of the people caught within it, and in how few avenues there were, at my desk, in the Criminal Code, through the courts and referral programs, or across the justice system more broadly, to change the circumstances to which they would return.
The closeness of Northern justice can produce an unusually rich understanding of context. Judges may know the communities to which people will return. Circuit courts repeatedly bring the justice system and communities in closer proximity. Lawyers and court workers see people move through different positions within the system. The structural conditions surrounding a case can be visible to almost everyone in the room. But proximity is not transformation.
A court can recognize trauma without being able to heal it. It can recognize the importance of culture and community without being able to create the infrastructure necessary to sustain them. A sentence can preserve possibilities for reintegration, but it cannot create housing, rebuild community supports or undo colonial displacement.
This is not a novel observation about the limits of criminal justice. But experiencing those limits from inside the system gave them a different weight. There is a particular frustration in seeing the larger conditions surrounding a case, seeing the limited pathways available to address them, and then seeing familiar faces return through the courtroom doors, both as victims and accused people on trial.
It also left me more attentive to the significance of what can happen within those limits. Context matters. Judicial discretion matters. Community-based and culturally meaningful sanctions matter. Being understood as a human being embedded in relationships, rather than only as the offence before the court, matters. But those interventions cannot carry the full burden of transformation.
Perhaps that is what the intimacy of Northern justice made hardest to ignore. When the people, relationships and histories surrounding a case remain close enough to see, so too do the limits of what a courtroom can repair. And maybe that’s why having had the experience of sitting within and amongst the gears of the criminal justice system was such an important experience and opportunity to reflect.