Plain language decisions and access to justice in an Ontario Gladue Court

R. v. Pelletier, 2016 ONCJ 628 was a recent case in the Ontario Court of Justice, with a judgement from Justice Nakatsuru, a Gladue Court Justice. The unique issue in this case was not to do with the fact situation, but rather, the personal and comprehensive decision that was written by Justice Nakatsuru. Justice Nakatsuru has written judgements like this in the past. Judgements that speak plainly, bluntly. That take a holistic view of an offender’s circumstances and lived experiences, and how those experiences interact with our justice system.

Firstly, this judgement spoke directly to Josephine Pelletier – a long-time offender. The language used by the judge was easy to understand and simple, yet powerful. He ensured that Ms. Pelletier could understand exactly why and how he came to his decision. This is certainly a breakthrough in access to justice – typically, judgements are several paragraphs long, refer to the offender in impersonal terms, and are laden with references and “legalese”. The average person has a frustrating time navigating these decisions. Decisions that affect their life, liberty, and security, in a criminal court.

This case was decided in a Gladue court and took more personal and subjective factors into account per the exercise of Gladue sentencing principles. Justice Nakatsuru considered the over-incarceration of Indigenous peoples in the justice system in Canada. He used strong language that condemned the justice system’s treatment of indigenous offenders. He used Ms. Pelletier’s history to fully direct his sentencing decisions. His articulation of his reasons was a great example of the rationale and, more technically, the carrying out of Gladue sentencing.

Further Justice Nakatsuru brought his own personal experiences directly into the judgement. His language was not unlike that used by Justice Sparks in R. v. S. (RD) [1997] 3 SCR 484. Justice Sparks’ lived experiences informed her commentary to bring a more on-the-ground understanding of the case’s socio-political context. However, the inclusion of a judge’s personal experiences into a judgement cannot always be said to be a benefit – Robin Camp’s comments on sexual assault is an obvious recent example. Nevertheless, there is benefit to be gained from diversity on the bench – female judges have changed the legal discourse on sexual assault; racialised judges such as Justice Sparks have informed the conversation on policing and the impact of institutionalised racism.

Judges with diverse perspectives can help to reconcile the need for targeted and specific rehabilitation methods, with the need to protect the community, punish the offender, and provide deterrence.

 

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.