Criminal Law Notebook

Sufficiency of Reasons

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General Principles

See also: Appeal on Miscarriage of Justice, Appeal of an Error of Law, and Role of the Trial Judge

The appellate review of reasons for decision must be done "functionally" and "contextually."[1] This can include keeping the "fundamental issue" of guilt as a "central focus" of analysis.[2]

The trial judge must consider the evidence "as a whole" or else risk committing an error of law.[3]

As a point of practice, the judge's decision should set out the contending positions of the parties on the facts and the law and explain the judge's conclusions on the facts and law.[4]

The accused may appeal from a verdict on the basis that that reasons of the Court were insufficient. The sufficiency of reasons is not a "standalone" ground of appeal. Rather it is a component to a ground of appeal for "reasonable verdict" under s. 686(1)(a)(i) or for a "miscarriage of justice" under s. 686(1)(a)(iii).[5]

Purpose of Reasons

The goal of giving reasons is to "show why the judge reached his or her conclusion."[6]

There is also the legal presumption that judges know the law and apply it correctly.[7] The need for reasons is balanced against the danger of "slow[ing] the system of justice immeasurably."[8] Judges give oral reasons on a daily basis, frequently limiting their reasons to the essential points. A reviewing court cannot "require them to explain in detail the process they followed to reach a verdict."[9]

Generally, reasons are needed to address any confused or contradictory evidence on an important issue.[10]

Burden

The burden is upon the appellant to show that the judge gave insufficient reasons.[11]

Standard of Proving Insufficiency

The standard of review with respect to the insufficiency of reasons is on the standard of "adequacy". The reasons will be adequate " if, when read in their entire context, they fulfill the threefold purpose of informing the parties of the basis of the verdict, providing public accountability and permitting meaningful appeal."[12]

The "core question in determining whether the trial judge’s reasons are sufficient is whether the reasons, read in context, show why the judge decided as he did.."[13]

The judge must only demonstrate "he came to grips with the issues thus defined by the defence."[14]

To form a valid ground of appeal the appellant must show that 1) the reasons were insufficient and 2) that the deficiency created "prejudice to the exercise of his or her legal right to an appeal in a criminal case"[15]

No Need to be Comprehensive

The judge is not required to "answer every argument, reconcile every frailty in the evidence, refer to all the conflicting evidence, and set out every finding made in reaching a verdict."[16]

There is no need to reference in the written judgement every item of evidence that was adduced.[17]

Just because the judge failed to address every consideration they made does not mean they failed to consider other reasons or did not exercise discretion judiciously.[18]

Judicial Copying

Judicial copying is a "long-standing" and acceptable practice. However, if the copying would "lead a reasonable person, and taking into account all relevant circumstances, to conclude that the decision-making process was fundamentally unfair" on account of the judge not putting their mind to the facts, arguments, issues at play and make an "impartial" and "independent" decision, then the decision can be set aside.[19]

Failure to attribute sources, by itself, does not rebut the presumption of judicial impartiality and integrity.[20] Rebuttal requires that a reasonable person, apprised of the circumstances, would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial and independent judgement.[21]

  1. ↑ R v GF, 2021 SCC 20 (CanLII), per Karakatsanis J, at para 76
    R v Sheppard, 2002 SCC 26 (CanLII), per Binnie J
  2. ↑ R v Preston, 2022 NSCA 66 (CanLII), per Derrick JA, at para 66
  3. ↑ R v JMH, 2011 SCC 45 (CanLII), per Cromwell J, at para 31
    R v Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286 1992 CarswellAlta 276 at 296(complete citation pending)
  4. ↑ Cojocaru v British Columbia Women's Hospital and Health Centre, 2013 SCC 30 (CanLII), [2013] 2 SCR 357, per McLachlin CJ
  5. ↑ see R v Sheppard, 2002 SCC 26 (CanLII), [2002] 1 SCR 869, per Binnie J
    R v Wigle, 2009 ONCA 604 (CanLII), 252 OAC 209, per Lang JA
  6. ↑ Sheppard, supra
  7. ↑ R v Gerrard, 2022 SCC 13 (CanLII), per Moldaver J, at para 2
    GF, supra at para 69 and 74
    R v JR, 2014 QCCA 869 (CanLII), 11 CR (7th) 409, per Hesler JA, at para 26
    R v Burns, 1994 CanLII 127 (SCC), [1994] 1 SCR 656, per McLachlin J
  8. ↑ Burns, ibid.
  9. ↑ R v Boucher, 2005 SCC 72 (CanLII), [2005] 3 SCR 499, per Deschamps J
  10. ↑ R v DR, 1996 CanLII 207 (SCC), [1996] 2 S.C.R 291, per Major J, at para 55
  11. ↑ Sheppard, supra, at para 54
    JR, supra, at para 26
  12. ↑ R v Oddleifson, 2010 MBCA 44 (CanLII), 256 CCC (3d) 317, per Chartier JA, at para 30
  13. ↑ R v Vuradin, 2013 SCC 38 (CanLII), [2013] 2 SCR 639, per Karakatsanis J (5:0)
  14. ↑ R v Ali, 2015 BCCA 333 (CanLII), 326 CCC (3d) 408, per Stromberg-Stein JA, at para 14
    Sheppard, supra, at para 25
  15. ↑ Sheppard, supra, at para 33 (“not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case”)
  16. ↑ Ali, supra, at para 13
    R v M. E-H., 2015 BCCA 54 (CanLII), 319 CCC (3d) 352, per MacKenzie JA, at para 68
  17. ↑ R v Tse, 2013 BCCA 121 (CanLII), per curiam, at para 56
    R v Blacklaws, 2012 BCCA 217 (CanLII), 285 CCC (3d) 132, per Newbury JA aff'd at 2013 SCC 8 (CanLII), per McLachlin CJ
    Dinardo, supra, at para 30
  18. ↑ R v Cote, 2016 ABCA 387 (CanLII), per Veldhuis JA, at para 13
    R v Anderson, 2013 ABCA 160 (CanLII), 553 AR 72, per curiam, at para 13
    R v Beals, 1993 CanLII 5636 (NSCA), , [1993] NSJ No 436, per Hallett JA, at paras 16 and 29
  19. ↑ Cojocaru, supra
  20. ↑ Cojocaru, supra
  21. ↑ Cojocaru, supra

Necessary Elements

Reasons for judgement will be sufficient where the reasons "read in context, show why the judge decided as he did" on the appropriate counts.[1]

The judge is required to give reasons for his or her decision on verdict.[2]

A judgement is sufficient if when "read in context, show why the judge decided as he or she did."[3]

Appellate review must take a "functional approach" when considering the sufficiency of reasons.[4] A functional approach requires examination fo the evidence and submissions of counsel.[5]

In a case that turns on determination of credibility, the reasons should be "considered in light of the deference afforded to trial judges on credibility findings."[6] Intervention on this basis for credibility cases should be "rare."[7] Absent a "palpable and overriding error by the trial judge" the perception of the judge should be respected.[8]

There is no obligation upon judges to address every argument made by counsel. [9] Nor must the judge articulate consideration of every part of the evidence.

The Criminal Code specifically mandates judges to give reasons on certain circumstances, such as when determining the admissibility of a complainant's prior sexual history [10]; ordering the production of prior personal information (s. 278.8(1)); and when imposing a sentence [11].

The reason must "sufficiently intelligible" to permit appellate review.[12]

A verdict must be based exclusively on admissible evidence heard at trial. If a trial judge has misapprehended the evidence, including resorting to material not before him or her, and the errors "play an essential part in the reasoning process resulting in a conviction then … the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict". [13]

Credibility

On findings concerning credibility focus on analysis "should be directed at whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel"[14] This however does not require "reasons to be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel."[15] Credibility cases require that the court sufficiently articulate how credibility concerns have been resolved. Failure to do so may be a reversible error.[16]

Credibility assessments should be accorded a high degree of deference.[17]

  1. ↑ R v Vuradin, 2013 SCC 38 (CanLII), [2013] 2 SCR 639, per Karakatsanis J, at para 15
  2. ↑ R v Sheppard, 2002 SCC 26 (CanLII), [2002] 1 SCR 869, per Binnie J, at para 55
    Pitts v Ontario, 1985 CanLII 2053 (ONSC), 51 OR (2d) 302, per Reid J, at p. 311
    R v Kendall, 2005 CanLII 21349 (ON CA), , [2005] O.J. No. 2457 (CA), per Cronk JA
  3. ↑ Vuradin, supra, at para 12
    R v REM, 2008 SCC 51 (CanLII), [2008] 3 SCR 3, per McLachlin CJ, at para 17
    R v AA, [2015] O.J. No. 4016(*no CanLII links) , at para 116
  4. ↑ Vuradin, supra, at para 10
  5. ↑ R v Soltan, 2019 ONCA 8 (CanLII), per curiam, at para 3
  6. ↑ R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, per Charron J, at para 26
  7. ↑ Dinardo, ibid., at para 26
  8. ↑ R v Gagnon, 2006 SCC 17 (CanLII), [2006] 1 SCR 621, per Bastarache and Abella JJ, at para 20
  9. ↑ Dinardo, supra, at para 30
  10. ↑ see s. 276.2(3)
  11. ↑ see s. 726.2
  12. ↑ R v JJRD, 2006 CanLII 40088 (ON CA), 215 CCC (3d) 252, per Doherty JA, at para 35
  13. ↑ R v Morrissey, 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193, per Doherty JA, at p. 541
    R v Lohrer, 2004 SCC 80 (CanLII), [2004] 3 SCR 732, per Binnie J, at paras 2 to 3
  14. ↑ Dinardo, supra, at para 25
  15. ↑ Dinardo, supra, at para 30
    also referenced in REM, supra
  16. ↑ Dinardo, supra, at para 26
    R v Braich, 2002 SCC 27 (CanLII), [2002] 1 SCR 903, per Binnie J, at para 23
  17. ↑ R v AA, 2015 ONCA 558 (CanLII), [2015] O.J. No. 4016, per Watt JA, at para 116

Inconsistent Verdicts

Where the judge or jury provides verdicts that are "irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence" then the verdict is unreasonable.[1]

  1. ↑ R v Pittiman, 2006 SCC 9 (CanLII), [2006] 1 SCR 381, per Charron J, at para 10

Timing of Reasons

Reasons for decision may not be valid where the delay between the ruling and the release of reasons are such that "a reasonable person could not be satisfied that the reasons for judgment actually reflect the reasoning process that led to the decision."[1]

All reasons released "are presumed to reflect the reasoning that led him [the trial judge] to his decision."[2] The presumption is rebuttable by factors including the passage of time which causes "a reasonable person would apprehend that the written reasons are, in effect, an after-the-fact justification for the verdicts rather than an articulation of the reasoning that led to the decision."[3]

  1. ↑ R v Teskey, 2007 SCC 25 (CanLII), [2007] 2 SCR 267, per Charron J
    R v Cunningham, 2011 ONCA 543 (CanLII), 274 CCC (3d) 338, per Doherty JA - reasons given 2 years after ruling
  2. ↑ Teskey, supra, at para 19
  3. ↑ Teskey, supra, at paras 21, 23

Standard of Review

The reasons are to be examined in a functional test.[1] "The requirement of reasons is tied to their purpose and the purpose varies with the context"[2] The functional and substantive manner means taking the reasons, "as a whole, in the context of the evidence, arguments, and the live issues at trial, with an appreciation of the purposes or functions for which reasons are given. There must be a logical connection between the verdict and the reasons. [3]

The purpose of the reviewing court is to "isolate those situations where deficiencies in the trial reasons will justify appellate intervention and either an acquittal or a new trial."[4]

When considering sufficiency, it is not the decision alone that should be considered but rather "what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial."[5]

Where an oral and written decision contains inconsistent findings and reasons to key findings, a new trial may be warranted.[6]

A trial judge's reasons should be reviewed on a "standard of adequacy."[7] The reasons are adequate if, as a whole, accomplish three purposes:[8]

  1. informing the parties of the basis of the verdict,
  2. providing public accountability and
  3. permitting a form of appeal.

Failure to evaluate a complainant's evidence in light of independent contradictory evidence is a reversible error.[9]

Inadequate reasons alone does not warrant appeal unless the deficiency creates a "prejudice to the exercise of his or her legal right to an appeal in a criminal case."[10]

There are three categories of cases where prejudice is caused by deficient reasons:[11]

  1. Allegation of unreasonable verdict cases;
  2. Allegation of error of law cases; and
  3. Miscarriage of justice cases.

Insufficient reasons are an error of law when they prevent any meaningful appellate review. [12]

Deference to Trial Judge

In reviewing a decision, there must be "sensitivity to the trial judge's role and advantage in making findings of fact and credibility."[13]

  1. ↑ R v Sheppard, 2002 SCC 26 (CanLII), [2002] 1 SCR 869, per Binnie J
  2. ↑ R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, per Charron J, at para 24
  3. ↑ Sheppard, supra
    R v TS, 2012 ONCA 289 (CanLII), 284 CCC (3d) 394, per Watt JA, at para 45
    R v REM, 2008 SCC 51 (CanLII), [2008] 3 SCR 3, per McLachlin CJ, at paras 16, 35, 55
  4. ↑ Sheppard, supra, at para 21
  5. ↑ REM, supra, at para 37
  6. ↑ R v Ball, 2012 ABCA 184 (CanLII), 557 WAC 102, per curiam
  7. ↑ R v Flores, 2013 MBCA 4 (CanLII), 288 Man R (2d) 173, per Monnin JA
  8. ↑ Flores, ibid.
    REM, supra
    See also R v Oddleifson (J.N.), 2010 MBCA 44 (CanLII), 256 CCC (3d) 317, per Chartier JA
  9. ↑ R v Hanson (K.J.), 2010 ABQB 128 (CanLII), 491 AR 257, per Hughes J
  10. ↑ R v Sheppard, 2002 SCC 26 (CanLII), [2002] 1 SCR 869, per Binnie J, at para 33 ("A more contextual approach is required. The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.")
  11. ↑ Sheppard, supra
  12. ↑ Sheppard, supra
  13. ↑ R v Stewart, 2022 BCCA 367 (CanLII), per DeWitt-Van Oosten J, at para 45
    R v GF, 2021 SCC 20 (CanLII), 404 CCC (3d) 1, per Karakatsanis J, at para 5
    R v Tessier, 2022 SCC 35 (CanLII), 473 DLR (4th) 317, per Kasirer J, at para 45

See Also

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