Everyone is expected to know the law and be held to it. But what happens when ordinary people cannot possibly understand the law?
Often times legislators draft convoluted statutes and judges write dense decisions. Although their bad writing keeps lawyers employed, lawyers (as officers of the court) should not celebrate poor prose. If people feel estranged by the law, they will seek justice elsewhere.
So too often legal authors remark on how our legal system criminalizes poverty. In R v Michael, 2014 ONCJ 360, Justice Paciocco calls a $900 fine (against an impoverished aboriginal man) a cruel and unusual punishment. In his judgment at paragraph 46, he states:
Mr. Michael is an exemplar of the tragedy of aboriginal offenders that plays itself out on a daily basis in our criminal courts. The overwhelming majority of such offenders are not warriors or dangerous predators. Their acts are more commonly, like the substance-addled conduct of Mr. Michael, a social nuisance committed by the desperate and pitiable….
… R. v. Ipeelee 2012 SCC 13 (CanLII) at para. 73 the Supreme Court of Canada explained:
“Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely – if ever – attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability… “few mortals could withstand such a childhood and youth without becoming seriously troubled.” Failing to take these circumstances into account would violate the fundamental principles of sentencing – that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
I completely agree with Justice Paciocco and other legal scholars that decry the unfairness of the law. However, the very writing of those same legal scholars’ can only be understood by lawyers. Their exclusionary prose reinforces the gap between laypeople and the justice system.
In R. v. Armitage, 2015 ONCJ 64, Justice Nakatsuru intentionally writes to the defendant, an aboriginal man with a Grade 8 education caught in the cycle of poverty and crime:
[1] This case was heard in the Gladue court [court proceedings that deal only with Aboriginal people] at Old City Hall in Toronto. Jesse Armitage is a troubled man of Aboriginal heritage who was sentenced by me a number of months ago. At the time I gave my decision, I said that I would draft and release a written decision. This is that decision.
[2] Before I get to this, I would like to make two short comments. First of all, I want to say something about the style of this decision. For those who have read some of my past judgments, the reader may notice a change. For Jesse Armitage, I have tried to say what I wanted to say in very plain language. 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.
[3] I say this because in the Gladue court at Old City Hall, accused persons who share a proud history of the first people who lived in this nation, not only have a right to be heard, but they also have a right to fully understand. Their voices are heard by the judges. And they must also know that we have heard them. I believe that the accused persons who have been in this court have had good experiences in this. This is something that they have come to appreciate. This is something they have a right to expect.
[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.
As lawyers, we are afflicted by the curse of knowledge. The curse seeps its way into our writing. Making the meaning of our prose unascertainable to lay people. In literature, obscure writing may a good thing. But in the court system, obscure legal writing undermines the rule of law. How can we fairly hold everyone to the law if only a select privileged few can understand it?
R v Michael: https://www.canlii.org/en/on/oncj/doc/2014/2014oncj360/2014oncj360.html?searchUrlHash=AAAAAQAUUiB2IE1pY2hhZWwgcGFjaW9jY28AAAAAAQ&resultIndex=7
