Ontario’s ‘poetic’ judge is back with another ruling

An Ontario judge famous for his heartfelt, easy-to-read rulings has released another eloquent decision, this time tackling the difficult question of whether to grant bail to an aboriginal man—who has “no one in the world” to vouch for him—or keep him locked in jail until he stands trial for sexual assault.

In the end, Justice Shaun Nakatsuru chose to release Pawal Sledz, a 33-year-old Mohawk, because it was “the right thing to do”—and because freeing him from pre-trial custody will help address “the evil that is the over-incarceration of indigenous people.”

After laying out the long “history of broken promises” made to aboriginal Canadians, from the “indignity of colonization” to “deliberate state policies that tried to commit cultural genocide,” the veteran judge made clear that the last thing he wants is “to become part of the problem.”

“We must carefully look at the unique situation of each indigenous person,” he wrote in the ruling, released March 13. “And we must try to find an answer. Even when that answer is hard to find.”

Nakatsuru made headlines two years ago after writing what some described as a “poetic” and “inspiring” sentencing ruling in the case of another aboriginal man, convicted of theft. The decision was widely praised in the legal community for its clarity and empathy. “I have tried to say what I wanted to say in very plain language,” he wrote then. “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.”

In this latest case, Nakatsuru did not gloss over the obvious: that Sledz “is facing some very serious charges.” Arrested in November 2015, he and two other men (Derrick Goulding and Shawn Deon Clyke) are accused of committing a gang sexual assault against a 21-year-old Toronto woman, who was walking near Yonge Street when she was attacked from behind and forced into a secluded area.

But unlike his alleged accomplices, who were released from jail pending trial, Sledz spent 16 months behind bars because he had no one willing to act as a surety on his bail application.

“In this case, the difference between you and your co-accused is stark,” Nakatsuru wrote. “They have family. You do not. Their family bailed them out. No one is here for you. They are out. You are in.”

Why Sledz could not find a surety—and why he was nevertheless set free—is best left to the judge’s choice of words. Here are the key excerpts of a ruling that will no doubt be as widely read as his last one. (The paragraph numbers are as they appear in the judgment.)

[8] Your father is Polish. Your mother was Mohawk. She died while giving birth to you. You do not have any brothers or sisters. From birth, you lived in an orphanage for nine years. Then placed in a number of foster homes. You were adopted by a Polish couple. But you returned to CAS care. You only met your father a couple of times. When you were an adult. They were hard meetings. You have described him as a racist. It is clear to me that there is no relationship between you and him. I am not sure there ever will be. It is at one of those meetings, your father told you about your indigenous background. It explains your dark complexion. It explains why your face looks the way it does. Since then, you say you have found some aunts from your mother’s family. But you are not ready to contact them yet. I can understand that.

[10] The plan your lawyer has given me is a Toronto Bail Program release. In other words, you would be released on your own bail with the Toronto Bail Program supervising and helping you. You have no one to act as a surety. Given your past, I can understand why you have no one in the world to come forward for you. It is sad. But it is your reality. I don’t know much about you, but I get it. I get why you have no one willing to take on that job for you. Perhaps there would have been before. But not now.

[13] Due to your life circumstances, there is no one on board for you. You are taking this journey alone. That is the key difference between you and your co-accused. The crimes you are alleged to have committed are the same. You all share similar backgrounds in a certain relevant way. Indeed, one co-accused who is alleged to have taken a greater role in the gang sexual assault, has a background that is even more relevant than yours. The evidence against you and your co-accused is similar. Indeed, for one co-accused, it is stronger. When I look at this case, I am struck by this key difference. Your co-accused have people. They are out on bail. There is no one for you. You remain in jail.

[14] Now Mr. Sledz, in bail cases, sometimes this happens. A person has no surety. This can be important in deciding if I can make a release order. If the only way I can be satisfied that the test for bail is met is that there is a surety, then there can be only one right decision. No surety. No bail. It does not matter whether the accused is indigenous or not.

[15] But when an accused is indigenous, I must think carefully about what having no surety available means to my decision. I have no doubt that your childhood has led to where you are now in life. You had no stability. You were taunted. You were subject to racism. You had no true identity of who you were. No doubt, there were some good and kind people who did their best for you. But I think you did not receive the love and nurturing needed. To grow up straight. To have good people in your life. Who took the time. Who meant something to you. Then and now.

[16] As an indigenous person, you share a history. A common history with others. A history of being here on this land before the settler. A history of broken promises. Of illness and death. The loss of land. The indignity of colonization. Then there is the history of some deliberate state policies that tried to commit cultural genocide of indigenous people. Said crudely but accurately, policies that tried to kill the Indian in the Indian. As Canadians, we are all becoming more knowledgeable and sensitive to this history.  And what it means.

[17] This common history sometimes has greater meaning when it comes to the personal history of someone like you. That history has led to too many children in care of the state. Too many children divorced from their indigenous identity. Too many children who find themselves going from care to crime. Some of those children grow up to be adults who live at the margins of society. In poverty. Without much opportunity or connection. They are not embraced by the community. They do not have the friends and the family that the luckier of us take for granted. These are the friends and the family that can come forward to help. Like when you are accused of a serious criminal offence. This is you, Mr. Sledz.

[18] There is a disproportionate number of indigenous persons in jail. That means sir that too many indigenous persons compared to their overall population in this country find themselves behind bars. Too often this starts at the pretrial stage when they cannot get bail. Finding a solution means we must start at the bail stage. We must look at each case. We must carefully look at the unique situation of each indigenous person. And we must try to find an answer. Even when that answer is hard to find.  Just as a surety may be hard for you to find.

[20] So when I look at your case and ask myself whether detention is the only answer, I must be mindful that I do not want to become part of the problem. Of course, it would be perfect if you had perfect sureties. But I believe there is a way you can be safely released. You and the young woman do not know each other. There was a period of some seven months after the alleged attack and before you were identified and arrested that you were out, free in the city. At no point during this time, did you bother this woman or try to seek her out, let alone cause her any harm. There is nothing in your personal history related this type of alleged sexual offence. No one suggests that you are some form of serial sexual predator. The Toronto Bail Program is willing to supervise you. They will offer you help as well. You will only be on bail for three months before you face trial along with your co-accused. Your indigenous identity has meaningfully contributed to the situation where you have no surety. No one to stand beside you. Given all this, I find that Crown has not shown why you must be detained. The Crown has not shown it to be necessary for the safety and protection of the community. To give you this release will further the goal of solving the evil that is the over-incarceration of indigenous people without sacrificing the goals of the bail law.

[22] So Mr. Sledz, I released you on your own bail with the Toronto Bail Program watching you and with some tight conditions including a curfew. 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.