A Sentence to Go “Home”

The bar has often lamented the lack of “plain language” by the bench, a necessary prerequisite for transparency and open access to the public.

At times, the need for this approach has been criticized as overlooking the needs of the parties. Sometimes, like in the Meads case, this approach is intended to address broader, systemic problems. As I told Canadian Lawyer Magazine a few years ago,

“I think the fact that the judge even made this ruling suggests how big a problem it is,” says Toronto lawyer Omar Ha-Redeye. “This is a hot issue. Family law is in crisis in Canada.” According to Ha-Redeye, who recently spoke on a panel about self-represented litigants in family law and cost-sensitivity (notably unbundled services), self-representation is soaring across the country. He says two factors are driving people to self-representation: frustration with the cost and access to the legal system, and a lack of legal information that people can access. “Many of them think self-rep is easy,” he says. “But they discover too late that the reality is really quite different.”

Yet the use of plain language can have another effect, in signalling compassion, understanding, and the reflective nature of the bench.

Justice Shaun Nakatsuru helped exemplify this approach in a recent Ontario Court of Justice ruling in R. v. Pelletier. The court was dealing with a breach of a supervision order for an offender who was supposed to abstain from using illegal drugs.

She had a long criminal record, and Justice Nakatsuru noted that she was intimately familiar with the various principles of sentencing, including denunciation, deterrence, and rehabilitation.

What is remarkable about the decision is the extent to which he expresses empathy for the ordeals she has undergone,

[9] I will not detail in my decision the trauma you have suffered. Physical, sexual, and emotional trauma. Even when you were so young. A child. To do so in such a public way as in a judicial decision will not help you heal. I will say this though. Ms. Hughes testified that in the years she has worked as a Parole Officer she has never met anyone who has faced so much death in her personal life as you. The suicides. The loss. That really struck me. I will also say that you are a Residential School survivor. You are not ready to reveal all that went on. You have just this spring received almost two hundred thousand dollars in compensation. That can only hint at the experience you had to endure. Let me say this about this compensation. You have shown much wisdom and insight about it. When you were offered an inpatient program in Vancouver, you said no. You were concerned that this would not be a good place to be for a serious addict such as yourself. Especially with this money. You have kept the funds safe. You understand that it can help you forge a new life for yourself. And your son. Let me also say this about the compensation. It can never be enough. It cannot fully restore what was lost. But it is recognition of the injustice done to you and other indigenous people in Canada. It recognizes the truth of what was done. It can be part of the reconciliation needed.

Despite this expression, Justice Nakatsuru was equally careful to denounce her actions and criminal history. Ultimately though it was unnecessary for a woman who had already served 161 days in pretrial custody.

The accused wished to return to Saskatchewan, where she had more supports, services,and programs, and planned to continue her rehabilitation. The Crown opposed this move, because that was where many of her crimes took place, and where he claimed many of her triggers were located.

Justice Nakatsuru provided her one-to-one credit for her pretrial custody and sentenced her to 1 day, wishing her all the best, and indicating he would be sending her “home,”

[29] [I]t is the most natural of human instincts to want to go home. Even when memories of home are at times tinged with sadness, fear, or regret. Because I am not talking about someone’s actual home. Or a home from one’s childhood. We all nurture in our heart the idea of “Home”.

The idea of home is about a place of safety. A refuge. A sanctuary. Where love resides. Home is a place of hope. A place of potential. A place where every one of us can feel like we can become better.

Every one of us has such a home, Ms. Pelletier. Even if you live in a small room dimly lit by a bare light bulb hanging from the ceiling. Even if that home can only be conjured up in your imagination if you have the misfortune of having to sleep in a dormitory of a shelter.

Or on a steel cot in a prison cell.

This is not the first time that Justice Nakatsuru has adopted this approach, especially for First Nations offenders.

In R. v. Armitage last year, he announced a change in the style of his decisions, with a deliberate attempt to use plain language,

[2] … I believe that this is very important for judges to do in every decision. However, judges often do not do a good job of this. I would describe myself as one of the worst sinners. As lawyers first and then judges, we get used to using words that are long and complicated. This only muddies the message we are trying to say. That message is very important when it comes to passing a sentence on an offender. That the message is clear is even more important in the Gladue courtroom.

He continued to explore the complicated nature of Gladue rights and the proper application of its principles. But he also was very clear about who the decision was for,

[4] I know that all accused, whether they have any Aboriginal blood or not, should have this right. Judges struggle to make sure they do. However, when judges write their decisions, they are writing for different readers, different audiences. Judges write not only for the parties before them. Judges write to other readers of the law. Lawyers. Other judges. The community.

[5] In this case, I am writing for Jesse Armitage [the accused].

What is plainly evident to me from his language is that the plain language approach is quite versatile indeed, and need not veer off into judicial arrogance or denigration.

Justice Nakatsuru’s new approach should be commended as one that still educates the public, provides useful precedent, and still exemplifies respect for the parties. It is one that other judges should contemplate adopting as well.