Judicial Poetry

Judicial Poetry

Judges have a duty to provide reasons for their decisions. This would seem to be self-evident. But it wasn’t — at least not until 2002 when the Supreme Court of Canada was called upon to review the sufficiency of the trial judge’s reasons for convicting a young man named Colin Sheppard.

At trial Sheppard had been convicted of stealing two windows. There was no physical evidence linking him to the theft —- no fingerprints, no DNA, nor any video surveillance. Nothing.

The only evidence of guilt came from his estranged girlfriend — who went to the police two days after her “tempestuous” relationship with Sheppard had ended. She said that he had confessed to her and told her he had stolen the windows.

Sheppard testified and denied he committed any crime. The case was laughably weak. But Sheppard was convicted. The trial judge could have tweeted his reasons: “Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged.” Seriously — that is all of it — 36 words.

The Supreme Court, in R. v. Sheppard 2002 SCC 26, overturned the conviction saying that Sheppard “still does not understand the basis of his conviction and neither do we.” It is really about common sense.

The importance of reasons for judgment cannot be understated. Detailed reasons are the main way for a court to communicate with the parties to the litigation. At the end of a case there should be no doubt why and how a court reached the decision it did. Reasons also act to hold our judges to account.

Judges are human and can make mistakes about the facts or err in their application of the law. Detailed reasons are the only way appeal courts review decisions from lower counts to ensure that justice has been done.

The Supreme Court also noted our courts owe a duty to the public to provide reasons. Justice must not only be done but must be seen to be done. This is especially true when courts are called upon to deal with matters more serious than the theft of windows.The Supreme Court’s direction in the Sheppard case is a message that many Canadian judges have taken to heart as an increasing number of judgments are being written in plain, accessible, and powerful language.

Take the example of “Canada’s poetic judge” Justice Shaun Nakatsuru who delivered a moving judgment in sentencing a young Aboriginal offender who had pleaded guilty to a string property offences. Justice Nakatsuru began the decision by noting the importance of using plain language —- his audience in this case the Aboriginal offender.

Justice Nakatsuru wrote of the bleak repetition of offences, the frustration of periods of the offender’s personal successes followed by repeated failure, the systemic failures of the justice system, and the all-too-common discrimination and marginalization faced by indigenous Canadians.

Justice Nakatsuru wrote: “I find that [the offender] appears before me as a dispirited man. He has really no self-esteem. He does not think of himself as important. As a result, he does not seem to care about what he does. The harm he has caused to others. The harm he has caused to himself. His spirit has fallen ill. Although I cannot say exactly how or describe it in easy to understand words, it strikes me that [the offender] is a metaphor for what negative effects colonization has had on many First Nations people and communities.”

In the end Nakatsuru departed from the usual sentence of jail noting that the offender had come to a point in his life where he was ready to change. The decision ended: “When an offender has come to this point, no matter how long, tortuous, or difficult the path taken to get there, there cannot be sadness or disappointment. There can only be hope.”

The decision was celebrated as a high-water mark in accessible judicial communication.

And then Justice Nakatsuru did it again. This time writing another powerful decision granting bail to another man, this time accused of very serious offences. Justice Nakatsuru ended that decision saying: “I hope this written decision sheds more light into why. I hope this decision also tells others why in some cases, the indigenous accused must be treated differently than other non-indigenous accused. I believe this is the right thing to do.”

This is the message of Sheppard — it’s all about communication. But there are risks in turning legal decisions into works of commentary.

Justice Alex Pazaratz used a divorce judgment as an opportunity to blast the legal aid system and wasted resources. “The next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it,” wrote Justice Pazaratz, continuing, “It can’t possibly be true. Not if they’re funding cases like this.”

Justice Pazaratz followed that opening salvo with 34 paragraphs of blistering and sometimes sarcastic criticism. I suppose from the bench it all seemed simple. You see the case took a long time to complete. This appears to have annoyed Justice Pazaratz. He wrote, “They have no children. No jobs. No income. No property. Nothing to divide. It should be a simple case.”

But sometimes cases are not as simple as they seem.

The husband and wife had emigrated from Iraq but Justice Pazaratz’s decision devoted more page space to an accounting of court costs and detailing notions of taxpayer protection than to any recognition that language, culture, and unfamiliarity with the legal system may have influenced the unfolding of the case.

Oh — there were also allegations of domestic abuse — but Justice Pazaratz wrote, “It’s not uncommon that separated couples disagree about who did what.” But this aspect of the case apparently merited little other judicial consideration.

The Pazaratz decision may have attracted cynical page clicks but in the end it likely did little to educate the parties or public about our court system. Since Sheppard there has been an evolution in judicial writing. Written decisions are more publicly accessible than ever before. But our courts must remember that there is a fine line between plain language and inappropriate commentary, between style and substance, and between communication and advocacy.

Because at the end of the day the courtroom is not a theatre and not all poetry is beautiful.