Law Times

Page 6 March 9, 2015 • Law Times www.lawtimesnews.com COMMENT A remarkable ruling hile there's long been debate about how to apply the R. v. Gladue principles in sentencing aboriginal offend- ers, Ontario Court Justice Shaun Nakatsuru has pro- vided probably one of the best examples of the way to do it in his sentencing decision in R. v. Armitage. In what's likely one of the more heartfelt recent decisions written by an Ontario judge, Nakatsuru truly demonstrated the value of a Gladue court. He was sentencing Jesse Armitage, a man with a long criminal record, for several offences including property crimes and breaches of court orders. What was truly remarkable about Nakatsuru's reasons was the depth he went into in exploring Armitage's circumstances, in- cluding his heritage as member of the Dokis First Nation southeast of Sudbury, Ont., his diagnosis with attention deficit hyperactivity disor- der, the fact he left home at 15, and his struggles with substance abuse. None of those issues are remarkable, but Nakatsuru truly did what the Gladue approach expects by getting as much informa- tion as possible about the offender. And he did so in a way that was straightforward while respecting Armitage's right to have the judge hear and understand him. As Nakatsuru wrote: "In this case, I am writing for Jesse Armitage." In the end, Nakatsuru gave Armitage a conditional sentence de- spite the concern about the offender's long history of breaches. "Some will also criticize that Mr. Armitage has had many chances," he wrote. "And that he has failed each time. I agree with such criticism. But I believe what we must do in order to be a part of the solution rather than the problem, is to not stop offering a chance to an offender when it is the right thing to do. This is the best way to be a part of the solution." Vigorous debate sparked over religious symbols in court Muslim single mother of three on welfare, Rania El-Alloul, walked into a Quebec court two weeks ago hoping to get back the family car. The Quebec Auto- mobile Insurance Corp. had impound- ed the vehicle after police caught her son driving without a permit. Quebec Court Justice Eliana Maren- go spotted the woman wearing a veil that covered her head but not her face. "Why are you wearing that scarf on your head?" the judge asked. "Because I'm Muslim," the woman replied politely. Marengo shot back that the courts are a secular place "devoid of religious symbols for reasons of decorum." There are no religious symbols in her court, she explained. "There are none on the walls or on people. Article 13 of the Rules of Practice of the Court of Que- bec stipulates that all persons present in court must be suitably dressed. Accord- ing to me, you are not." She decided she wouldn't allow El- Alloul to proceed in her court until she took off her veil. There was nothing the woman could do. The news of her refusal in the court- room went around the world. It was big news, especially in Muslim countries. For El-Alloul, the veil was more than a religious sym- bol. "It's part of me; it's not just a symbol," she said. "This hijab is very impor- tant for us. We respect every- one and we want in turn to be respected." The case sparked a vigor- ous debate over whether the judge's decision had violated the wom- an's constitutional rights. The chief justice of the Quebec Court, Elizabeth Corte, said later there are no directives on religious symbols worn by people in courtrooms. It's up to each judge to exercise discretion when it comes to suitable attire in the courtroom. Marengo isn't a novice judge. She joined the bench in 1996 and has a good reputation. It seemed Quebec Premier Philippe Couillard didn't know what to say. "I won't be going any further than saying that this decision perturbs me somewhat," Couillard said at a news conference. He thought about it and added: "We are deeply convinced that the only justifiable limitation on this matter of religious sym- bols — and not just those of Muslims but also those of Christian people, those of the Jewish faith, and other confessions — is linked to communication, identifica- tion, and security. "There is no other way of justifying such an attack on our freedoms." El-Alloul talked to reporters about perhaps taking the matter to the Quebec Judicial Council. But before El-Alloul could file a complaint, Montreal's Jean- Paul Lussier did so on her behalf, backed by impressive numbers of ordinary Que- beckers of every race and religion as well as numerous lawyers who were just wait- ing to assist with this kind of legal case. The issue reverberated in Ottawa as well. Liberal Leader Justin Trudeau said Marengo's actions were "unacceptable." He added: "In Canada we protect the rights of minorities. We are known for our diversity and protecting the rights of individuals." NDP Leader Thomas Mulcair said the judge had "made a mistake" and he hoped El-Alloul would get her court hearing as soon as possible. Premier Stephen Harper said through a spokesman that "wearing a hijab is completely acceptable, including in the courts of justice." Now it's up to the Quebec Judi- cial Council to have the final word on Marengo. It's important to note the is- sue has arisen before. On Nov. 29, 1993, a municipal court Judge Richard Alary asked a woman who had entered the courtroom to remove her veil. The Que- bec legal community raised an outcry and the Quebec justice minister at the time, Gil Rémillard, took the issue to the Quebec Judicial Council. It rejected the complaint on the grounds that the woman had appeared in court without her hijab on two previous occasions. Wearing a veil was therefore not part of her religious convictions, it found. But interestingly, the council also said judges had an obligation to find "reasonable accommodations" when the rules of practice in a courtroom ran up against the religious beliefs of individu- als appearing before them. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Shannon Kari Copy Editor . . . . . . . . . . . . . . . . . . . . . . . . . James Kang CaseLaw Editor . . . . . . . . . . . . . . . . . . . Lorraine Pang Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth While Armitage ended up in trouble once again "for doing very much the same thing he has al- ways done," the outcome was still positive. Armit- age himself asked Nakatsuru to jail him for nine months so he could go to the St. Lawrence Valley Treatment Centre. "This was not something that came from me or the Crown," wrote Nakatsuru, whose ruling noted Armitage's previous tentative interest in getting help. Nakatsuru concluded: "When an offender has come to this point, no matter how long, tortuous, or difficult the path taken to get there, there can- not be sadness or disappointment. There can only be hope." No one can predict what will happen to Armit- age, but Nakatsuru has provided a beautiful exam- ple of how positive the court process can be. — Glenn Kauth W A The Hill Richard Cleroux

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