Last month, Justice Nakatsuru of the Ontario Court of justice in Toronto released a decision in the matter of R v. Pelletier. Ms. Pelletier, an Indigenous woman from Regina, Saskatchewan, was before the courts in Ontario for breaching a long-term offender supervision order. The resulting sentencing decision is absolutely worth reading, for lawyers and non-lawyers alike. While many cases describe the factors that should be considered in Indigenous people following R v. Gladue, Justice Nakatsuru manages, in a mere 8 pages, to capture the essence of Gladue in a humanizing way. In my view, the decision is important for a few reasons:
1. It speaks in plain language.
Lawyers and judges often resort to complex legal writing and can forget that the subject of the proceedings (the accused person) is not used to this language. Here, Justice Nakatsuru made a concerted effort not only to address Ms. Pelletier directly, but to speak clearly and simply. For example, instead of using aggravating/mitigating factors, he simply said “Some things made this offence more serious,” and “Some things weigh in your favour.”
2. It is respectful of the trauma suffered by Indigenous people.
I’ve written before about the challenges that come with representing Indigenous clients, and of eliciting and presenting evidence of past trauma while respecting the privacy of the client. Justice Nakatsuru made a pointed decision not to detail the trauma Ms. Pelletier had suffered, given that this would not help her to heal, but acknowledged this trauma with respect and empathy.
3. It acknowledges that the line between victim and offender does not always exist.
Justice Nakatsuru drew a direct line from Ms. Pelletier’s personal history and the history of Indigenous people in Canada to the offence. In doing so, he recognized that her experiences throughout her life, including at residential school, have resulted in deep suffering and concluded “You are as much a victim as an offender when I look at the whole picture.” [para 15]. This realization is true for many accused people in the criminal justice system, and is an important reminder in the face of polarizing political rhetoric that urges us to see victims and offenders are completely separate.
4. It recognizes the complicity of all Canadians in how have treated Indigenous people.
Perhaps the most striking line of the judgment comes at paragraph 21, where Justice Nakatsuru writes:
“I must have regard to your special circumstances as an indigenous offender. How it is connected to you and this offence. When I do, while I must hold you responsible for your actions, the moral blameworthiness of it is lessened. Quite frankly, in a way, we all share blame for what you have become and what you have done.” [para 21]
It is almost startling to see this kind of phrase within a judgment. Gladue factors can often get watered down into a set a circumstances that courts much consider. But the whole point of Gladue is to redress the historical harms imposed on Indigenous people, and part of that is acknowledging the responsibility of all Canadians. Justice Nakatsuru is able to connect reconciliation with sentencing, holding the rest of the justice system accountable in recognizing our complicity in having so many Indigenous people before the courts and in jail.
5. It inspires hope.
Justice Nakatsuru recognized that Ms. Pelletier wished to return to Saskatchewan and concluded the decision by speaking about the natural human instinct to go home. He wrote:
“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.”
And finally:
“After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.”
I take some small bit of solace in the fact that despite how busy courts can be, and how awful someone’s personal circumstances may be, that there is space for the courts to treat accused persons with compassion and grace while calling for all Canadians to take responsibility in working on these issues and moving forward.