In criminal trials heard by a judge alone, sitting without a jury, the reasons provided for his or her decision are particularly important. The Supreme Court has held that the trial judge has a duty to give reasons in non-jury criminal trials.
In R. v. R.E.M., 2008 SCC 51, Chief Justice McLachlin explained the basis for this requirement:
1) Reasons tell the parties affected by the decision why the decision was made.
2) Reasons provide public accountability of the trial judge’s decision.
3) Reasons for both the factual findings and legal rulings made by a trial judge permits courts of appeal to effectively review his or her decision.
4) Requiring the trial judge to articulate their reasons ensures that they focus on the live issues in the case and do not overlook important facts or legal points.
5) Reasons provide guidance to courts dealing with similar issues in the future to ensure that the law is applied in a fair and uniform manner.
The first three rationales are critical, and establish the basic requirements for reasons. Reasons must explain to the parties why the decision was made, provide public accountability, and permit appellate review.
Criminal defence lawyers appealing a conviction in a judge-alone trial examine the trial judge’s reasons for legal and factual errors to raise before the Court of Appeal. It is therefore particularly important that the trial judge give reasons that clearly explain why the trial judge found someone guilty. If the trial judge’s reasons are “so deficient that they foreclose meaningful appellate review”, the Court of Appeal will find that the inadequacy of the reasons requires a new trial.
In order to determine whether a trial judge gave sufficient reasons, the Court of Appeal will examine not only what the trial judge said or wrote, but also the context of the evidence at trial, the issues at trial, and the submissions at trial of Crown counsel and the defence. The key question is whether, in the full context, the reasons show that the trial judge addressed the “live issues”. It is not necessary for reasons to respond to every argument made by the defence, or address every piece of evidence in a case; however, it is necessary that the parties, the public, and appellate courts be able to understand what the trial judge decided about the key facts and legal issues in a case, and why.
Even if the reasons are deficient, and do not explicitly set out how conclusions were reached, the Supreme Court has held that there will be no error if the basis for the trial judge’s conclusions are “apparent from the record, even without being articulated.” (R. v. Sheppard, 2002 SCC 26) Although courts of appeal should examine the evidence to determine if the trial judge’s reasoning is obvious in the context of the record, appeal courts should not reassess aspects or issues in the case that the trial judge did not resolve, or substitute its own analysis of the case for the trial judge’s analysis.
The Supreme Court of Canada recently re-emphasized the importance of this distinction in R. v. Black, 2018 SCC 10. In Black, the Appellant was convicted of importing cocaine after returning from a trip to Antigua. Cocaine was found in a suitcase with his name on it, but which he did not take with him from the Toronto airport. There was no direct evidence that he had checked any luggage or had knowledge of the cocaine in the suitcase. The Appellant testified that he had given that suitcase to his girlfriend earlier that year, had broken up with her on his most recent trip, and had not seen the suitcase in question on this visit. The trial judge gave reasons for rejecting the Appellant’s testimony but did not explain whether the Crown had proven whether the Appellant knew about or was wilfully blind to the cocaine in the suitcase. In the decision of the Court of Appeal for Ontario, 2017 ONCA 599, the majority held that the trial judge’s reasons were not inadequate, as it was a “one-issue trial”. The trial judge, having given detailed reasons for rejecting the Appellant’s denial, “implicitly drew the inference that the appellant knew about the presence of cocaine in the suitcase.”
The Supreme Court unanimously overturned the decision of the majority, agreeing with the dissenting reasons of Justice Pardu. In this case, there were two routes to mens rea – (1) that the appellant knew his luggage was used to transport drugs, and (2) that he was wilfully blind to that use. Pardu J.A. held that “[t]here may be an implicit route available from the trial judge’s explicit factual findings […] to a finding of the appellant’s guilt, but ‘it is not appropriate for this court to attempt to discern that route and explain it’.” The Supreme Court agreed that the trial judge’s reasons, even in the context of the record, did not reveal on which basis he concluded that mens rea was proven beyond a reasonable doubt – knowledge or wilful blindness – and that the reasons thus precluded effective appellate review, and required a new trial.
This decision re-emphasizes that, although a trial judge’s reasons do not need to walk the reader step-by-step through the reasoning process, it is vital that there be no ambiguity about how the live issues were resolved and on what basis the essential elements of the offence were established.
Lockyer Campbell Posner has a small boutique within the firm that specializes in bringing appeals against conviction and sentence in criminal and quasi-criminal matters. Do not hesitate at all to contact us if you would like advice on how we can assist you, a family member, or friend appeal a conviction or sentence.