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Plain Language Judgement Directed to the Accused

Here’s a rare good news story in criminal law. A judgement penned by Justice Shaun Nakatsuru made the Toronto Star today simply because it was (a) written in plain, easy to understand language, and (b) directed with empathy and compassion towards the accused. I won’t repeat the further details of the Star’s coverage. Please follow the link for that. But I will note this is far rarer than should be the case.

With today’s over-heated political rhetoric it can be very easy to forget that a criminal case is still essentially a two-party proceeding between the state (Canada) and the criminally accused. In every such proceeding, the accused is faced with some claim of wrong-doing and the state then has to prove they actually did it, if they can, and then decide what punishment they should suffer if the claim is proved. It’s really that simple. And yet for a variety of reasons the accused has been pushed farther and farther out of the picture. Now, our government would tell us, the most important people in any criminal proceeding are (a) the victims (if in fact there are any) who deserve satisfaction, and (b) the law-abiding public with their fears and concerns (often tinted by prejudice of varying sorts) who deserve to have their sense of safety restored. Notice that not only is the accused pushed out of the picture, but even the state itself, which is capable of being more balanced and reasonable about the whole thing, is relegated to secondary status.

I know this is often an unpopular position to take, but when someone is accused of a crime and brought before a court it is often one of the most important and meaningful events of their lives. Of course the same is true for victims of crime, no question. But to reduce someone to a bit player in one of the most important experiences they will ever have – something that could affect the rest of their lives – is extremely harmful and marginalizing. As Justice Nakatsuru clearly appreciates, we are already talking about marginalized people who are on the outside of mainstream society in various ways. At the very point in time when they are most vulnerable, and when they are forced to interact with a system that normally can’t be bothered with them, they are reminded of how little they matter. And how could that possibly be just or healthy – for really anyone? Society doesn’t benefit either, by further marginalizing the already marginalized.

Obviously the criminal justice system has to pass judgement on and often punish people. That will always be necessary, and a function of the system. But the bottom line is this. There is no reason that the accused (now the convicted criminal) or anyone else should find the judgement hard to understand. That’s just adding insult to an already difficult time. And the accused can and should expect that a judgement will speak directly to him and not treat him as a bit player in his own life. Even for people who have done something wrong, is that really too much to ask?

Justice Nakatsuru is very rightly applauded for his efforts in this case. It’s just a shame they are so unusual.

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