Does Legal Language Matter?

Law has a reputation problem. I don’t mean the lawyers-can’t-be-trusted trope that litters the internet and bad jokes circuit. I mean the other reputation for being boring, dull and obtuse. Sadly, law comes by this reputation honestly. To an untrained eye, that lengthy Supreme Court case makes one’s eyes glaze over. Oh, and that lease agreement produces a big yawn. But legal writing need not be dry and without life. In fact, legal writing is coming into its own as cases are written in a more engaging and accessible way. Take the Supreme Court’s commitment to “plain English” case summaries or the number of court jurisdictions that tweet out short and inviting case briefs (see Alberta Queens’s Bench twitter feed). 

But this accessible and engaging writing is also finding its way into case decisions; the bastion of legalese. Of course, “accessible” and “engaging” are sometimes two different kinds of writing. Let’s look at “accessible” writing. In legal circles, accessible writing is an access to justice issue. Not every person involved in the justice system has the luxury of a lawyer to inform them of the issues in an easily translatable manner. Admittedly, not all those who do have lawyers receive this kind of information either. In any event, particularly with the advent of free online databases of decisions such as CanLII, it is increasingly clear we in law need to be clear in our writing. More importantly, case decisions should be understood by those whose lives are bound up with the outcome. The accused, the victim, the injured party and defendant all need to be able to read the final decision on their case and understand what did or did not happen to them. To be sure, judges write for many audiences but none more deserving of knowing than the aggrieved parties to the action. 

Interestingly, most case decisions are not specifically directed to the parties. They are written in the third person. The judge references their names and does not generally write in the second person by using the pronoun “you.” This is in sharp contrast with many political speeches. John F. Kennedy’s famous inaugural speech of 1961, is an example of where “we the people” were specifically entreated to “ask not what your country can do for you—ask what you can do for your country.” Making writing personal brings the individual into the bounded space of the page. It brings a sense of identity and an emotive response to the words. This power of words to move people is likely the reason for not writing case decisions in the 2nd person as case decisions must also double for case authority and precedent. Like Sgt. Joe Friday in Dragnet, it is better to just stick to the facts, particularly if the purpose is not to create an emotional response but to create an authoritative voice. 

Yet, directing the decision to the person affected, particularly in sentencing an accused, can send the right (write?) message. If one of the principles of sentencing is to rehabilitate or even denounce the behaviour, making the sentencing words powerful can speak to the offender on a different level. I am not thinking of a strongly worded chastisement of an offender but an accessibly written reasoning for punishing the offender. No doubt this goes on without a written record as most cases managed in provincial court are done in the moment without written reasons. However, there are notable case decisions such as R v Armitage, 2015 ONCJ 64, where the sentencing judge, Justice Nakatsuru, intentionally sentenced the Indigenous offender in a language the offender could relate to and understand. In my 1L criminal law class, I have the students read parts of this decision as a prime example of meaningful plain language legal writing. It is beautifully written and as readers we feel we are in the courtroom, hearing the judge speak frankly and directly to Jesse Armitage. 

In another sentencing decision, this time a young offender, Judge Janzen of the British Columbia Provincial Court, directs the entire decision to the offender by using the pronoun “you” in R v BLA2015 BCPC 20. Another example, a powerful one, of speaking directly to the offender, is R v MacGregor2005 CanLII 33746, an impaired driving sentencing by Judge Ayotte of the Territorial Court of the North West Territories. In this sentencing, Judge Ayotte explains to the offender, at pages 2 to 3, why their conduct is serious and how it can impact many lives,

When you drive in that condition, you turn your vehicle into a potential weapon. It was observed by the Chief Justice of Alberta, not the present one but a few years ago, who, of course, is the Chief Justice of the Territories, that the only difference between the drunk who gets home safely and the one that does not, is pure dumb luck.

I can tell you that in the years that I have spent on the bench, there has been more than one occasion where some otherwise upstanding good citizen has sobered up the next morning to realize that he or she has killed someone. It happens regularly.

Many of our citizens don’t understand the seriousness of the problem. Parliament has gone to extraordinary lengths to fight it. I will give you some examples. Ordinarily, a Court has the option in imposing sentence, of simply imposing a term of probation without more. We are prohibited from doing that for a drinking driver, even a first offender. There must be at least a $600 fine.

Ordinarily, Courts are given a choice of sentence, fine, gaol, probation, or a combination of those things. In some cases, as you found out in your case, the Crown is given the power by serving this notice to take away that Court’s choice and require a term of imprisonment. It is unusual for a Court to lose its discretion. Parliament does not do that sort of thing lightly. They do it because of the immensity of the problem in this country of the drinking driver.

 The decision is in both first and second person as the judge explains the law, explains the public wrong and does so as if the judge and the offender are sitting at a kitchen table having coffee. This is an accessible decision, which uses the power of words in a compassionate and personal way. I also recommend this short sentencing by Judge Ayotte in R v Modeste2005 NWTTC 10. But there is no better testament to a well written decision than another judge’s comments. Judge Doherty of the British Columbia Provincial Court, in sentencing an offender in R v Paul et al, 2005 BCPC 693, relies on a decision of Judge Ayotte with these words,

I am impressed with the care that Judge Ayotte took in R. v. Lamouche, et al, in the Provincial Court of Alberta, Criminal Division, reported at 1998 ABPC 101 (CanLII).  When I say impressed, I am impressed with his opening and the reasons he sets out.

Sentencing is understandably well suited to the personal touch. It is more difficult to personalize reasons for conviction or judgment. But this does not mean it cannot be written in an accessible manner. For example, Justice Feehan, who now sits on the Alberta Court of Appeal, writes clear straight forward decisions in his civil and criminal cases (see e.g. 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd2018 ABQB 478). Such a task becomes more difficult in the appellate courts where the rule of law, not the rule of plain English is of main concern. On the appellate side, Justice Doherty from the Court of Appeal for Ontario, continually produces decisions that illuminate rather than obscure. This is particularly important for a court dealing with contentious issues. An example of Justice Doherty’s style is in the decision, R v N.S.2010 ONCA 670 questioning the accused’s constitutional right to confront a witness who testifies while wearing a niqab. The simplicity of Justice Doherty’s language is enhanced by his scrupulous fairness is arriving at a decision. He sees the competing interests and he describes them in “human” language. For example, at paragraphs 45 to 46 he writes:

Before turning to the constitutional concepts and analysis, I think it is important to remind one's self of what is at stake in human terms. N.S. is facing a most difficult and intimidating task. She must describe intimate, humiliating and painful details of her childhood. She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence. The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members. It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices. 

[M---d.S. is facing serious criminal charges. If convicted, he may well go to jail for a considerable period of time. He will also wear the stigma of the child molester for the rest of his life. In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at M ---d.S. in a very different way. M---d.S. is presumed innocent. His fate will depend on whether N.S. is believed. In a very real sense, the rest of M---d.S.'s life depends on whether his counsel can show that N.S. is not a credible or reliable witness. No one can begrudge M---d.S.'s insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him. 

The two perspectives summarized above reveal the quandary faced by the preliminary inquiry judge. Both M---d.S. and N.S. have powerful claims that seem to lead to diametrically opposed conclusions. 

This kind of writing reflects the reality of criminal law and brings the issue to the citizen. This is accessible and engaging writing, but it is also powerful; not in the authoritative sense but, in the sense that through the power of words, the decision animates justice.

 A final comment on the use of the second person “you” pronoun. Notably, in the charge or instructions to the jury, the judge does use the pronoun “you.” Again, this device serves to bring directly to the jurors their personal responsibility to assess the evidence and arrive at a just and reasonable decision. The use of “you” attracts the duality of a jurors duties as well; each juror swears to act impartially and uphold the law but must do so collectively. 

There are some jurists who tend to the literary side. Their decisions are remarkable as they employ literary devices. Justice Watt, another experienced former trial judge and now appellate justice, writes in a muscular literary style, reminiscent of a par-boiled detective novel, as he starts his factual considerations in a clipped no-nonsense manner. A good example of this is the decision in R v Wolynec2015 ONCA 656 in which Justice Watt introduces the facts and the conclusion in paragraphs 1 to 9 as follows:

A lone bandit robbed a bank. He wore a grey hoodie. And sunglasses. He had a dark French goatee. He was soft-spoken when he asked the teller for cash. He made no gestures, nor any express threats. 

The next day, a few blocks away, the same thing happened. A lone bandit. A hoodie and sunglasses. A beard and moustache. But this time, the bandit presented a note. It said he wanted money. And that he had a gun. 

A short time after the second robbery, police found a grey sweatshirt in a garbage bin. On top of the sweatshirt was a newspaper. And on the newspaper, somebody had printed “have gun give me all money”. And on the top of the newspaper sat an open napkin similar to those supplied by restaurants. 

Police seized the sweatshirt. And the newspaper. But not the napkin. 

A few months later, a technician found a crusty tissue in a pocket of the sweatshirt. On the pocket and the tissue, a scientist detected evidence of bodily fluids. The chance of somebody other than Victor Wolynec being the source of the bodily fluids was one in 57 billion. 

A judge found Victor Wolynec guilty of both robberies and imposed concurrent sentences of imprisonment of 9 years. 

Victor Wolynec claims that the trial judge failed to adequately scrutinize weaknesses in the evidence adduced by the Crown and failed to grasp the position of the defence. As a result, he says his convictions are unreasonable and a miscarriage of justice. 

Victor Wolynec also challenges the sentence the trial judge imposed. He contends the sentence is too long, crushing any prospect of rehabilitation or reintegration into society. 

These reasons explain why I have decided that Victor Wolynec`s convictions are unassailable and his sentence fit. I would dismiss his appeal from conviction and grant leave but dismiss his appeal from sentence.

Note, how Justice Watt uses the first-person pronoun “I” to notify the reader that he takes full ownership of the decision. He also creates a partnership with the reader by stating the reasons to follow will provide an explanation for his conclusion. So too in the Armitage decision, Justice Nakatsuru uses the first person in the first few paragraphs to explain why he, the judge, was writing the decision for the offender. “I am writing for Jesse Armitage,” so says the judge at paragraph 5.

Yet, first person case decisions are unusual, despite the use of it by Justice Watt to frame his reasons. This is because case decisions are not about the judge personally or the judge’s feelings; the judge is not a party to the action but must be impartial and unbiased. The use of “I” perhaps personalizes the decision too much, making it more about the decision maker than the decision. Naturally, this does not mean a judge must abandon their past and become “sphynx-like” (see R v Adano2008 CanLII 23703 (ON SC) at para 23). A judge is a person too but not the first person in a case decision. Conversely, by eschewing the “I”, it could be argued the judge is depersonalizing the decision too much. In effect, we often need to read between the lines to understand the context of the decision and to humanize it. 

Recusal applications, in which the court is asked to step down from a case due to reasonable apprehension of bias, may be another kind of first-person decision.  Although, such applications are not to be viewed as personal affronts, it is difficult to suggest they are not. The test is an objective one; what the informed reasonable person would conclude. But the test is applied to a highly emotional situation where the trial judge is allegedly not acting “judicially.” The “I” is there no matter how arms-length the test may be and no matter how much law is recited.

 Engaging language in case decisions can also lean on humour. In a recent Ontario decision on a summary judgment application, Austin v Bell Canada2019 ONSC 4757, involving statutory interpretation and comma placement, Justice Morgan remarked at paragraph 47 that “despite their physically small stature, commas have created controversy in important places.” After more grammatical parries and thrusts, Justice Morgan concludes at paragraph 69, “I do not believe it was a legally induced comma.” Humour can relieve the tension, but it cannot take the place of legal principle; the decision is now under appeal. The case will be reviewed not on the basis of its candour but on the basis of its law. 

Another notably light-hearted decision is in Henderson v Henderson, 2016 SKQB 282, in which Justice Danyluk determines custody of the family pets. He opens the decision by stating a known truth that “Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.” The light heartedness turns a corner as the judge chastises the couple for wasting scarce judicial resources on the issue and urging them to settle this difference outside of court in an effort to “move along” the matter.

 For language we can all live by, the Charter decisions rendered by the Supreme Court of Canada are hard to beat. Interestingly, the Supreme Court Justices often use first-person personas, even when they are speaking on behalf of other justices. Justice Wilson, in particular, writes from the heart when in a separate but concurring judgment in R v Morgentaler, [1988] 1 SCR 30, she writes at page 164 that 

The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence.

This passage beautifully encompasses the yin and yang that is the dichotomy of the Charter; it encapsulates collective principles that are enshrined for the individual. Later in R v Lavallee, [1990] 1 SCR 852, she continues to bare what society tends to want to bury and tackles the legal tolerance of spousal abuse as a reflection of society as “laws do not spring out of a social vacuum.”

 Connecting the past to the present, Justice Abella knows how to open a decision by capturing the reader’s attention. On the pressing issue of media rights under s. 2(b), Justice Abella in her opening paragraphs 109 to 110 in R v Vice Media Canada Inc., 2018 SCC 53,maintains that 

 For twenty-five years, this Court has flirted with acknowledging that s. 2(b) of the Charter protects independent rights for the media. Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words “freedom of the press” in s. 2(b). The words are clear, the concerns are real, and the issue is ripe. A strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury — there can be no democracy without it.

Similarly, in the earlier decision of R v DLW[2016] 1 SCR 402, Abella J commenced her dissent in paragraph 125 with the deft use of good old fashioned metaphor by stating that 
“This case is about statutory interpretation, a fertile field where deductions are routinely harvested from words and intentions planted by legislatures. But when, as in this case, the roots are old, deep, and gnarled, it is much harder to know what was planted.” The living tree, indeed.

But it is the s. 8 search and seizure decisions, in which the normative world collides with the legalistic one, where the writing rouses our passions and requires us the reader to take part in the decision making. In Hunter v. Southam Inc., [1984] 2 SCR 145, Justice Dickson, as he then was, in determining the constitutionality of what he called an authorization of “breathtaking sweep,” remarked the then “new” constitution has 

an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

This reiteration of Lord Sankey’s “living tree doctrine” repatriates our fundamental values as a Charter principle and gives the reader a sense of Canadian destiny and nationhood. Fast forward to a more recent decision with Justice Karakatsanis dissenting in R v Fearon,[2014] 3 SCR 621, in which she calls out what is at the heart of s. 8 when she reminds us at paragraph 103 that “an individual’s right to a private sphere is a hallmark of our free and democratic society.  This Court has recognized that privacy is essential to human dignity, to democracy, and to self-determination.”

There are many more examples of clear, accessible and engaging language used in case decisions. Instead of the exception to the well-worn trope that the law as written is unreadable, these kinds of cases should be the expectation we have of our justice system. Our laws are ours and to be accessible, readable and meaningful, we look to those who wordsmith on a daily basis to bring us into the legal system as a true partner in its creation. Does legal language matter? I leave it to the reader to decide.