The accused is entitled to know why the trial judge is left with no reasonable doubt

Judge’s reasons, or rather the lack thereof, can be the basis for a successful appeal but only where the reasons are so bereft of content as to leave the unsuccessful party in doubt as to why they lost.

The inquiry into the sufficiency of the trial judge’s reasons should be directed at whether the reasons respond to the case’s live issues. The failure to do so deprives the losing party of the right to a meaningful appeal.

Friday’s Supreme Court of Canada decision in R. v. Dinardo, 2008 SCC 24 (CanLII) makes this point clearly:

[24] In R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, 2002 SCC 26, this Court confirmed that courts have a duty to give reasons. Reasons serve many purposes; in particular, they explain the court’s disposition of the case and facilitate appellate review of findings made at trial. The content of the duty will, of course, depend upon the exigencies of the case. As this Court has noted, “the requirement of reasons is tied to their purpose and the purpose varies with the context” (Sheppard, at para. 24).

[25] Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but 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 (R. v. D. (J.J.R.) 2006 CanLII 40088 (ON C.A.), (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.

[26] At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich, 2002 SCC 27 (CanLII), [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v. Gagnon, 2006 SCC 17 (CanLII), [2006] 1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know “why the trial judge is left with no reasonable doubt”:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21]

[27] Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55). Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant’s testimony on the issue of whether she invented the allegations. I also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal.

[28] It is evident from a review of the record that the complainant’s testimony concerned the trial judge. After she was cross-examined on whether she knew what it meant to “make up” a story, Rancourt J.C.Q. asked several follow-up questions of his own (A.R., at pp. 182-83). In his reasons for judgment, however, he did not explain why the complainant’s conflicting testimony did not cause him to doubt her credibility. Instead, he concluded as follows:

[translation] When cross-examined by counsel for the accused, she never contradicted herself on important facts, only on certain details that the Court does not consider important enough for the contradictions to affect her credibility. [para. 70]

[29] It cannot be said that the complainant’s testimony wavered only on the trivial details of the allegations. Her testimony wavered on the central issue at trial: that is, whether Mr. Dinardo committed the acts for which he was charged, or whether the story was invented. I disagree with the majority of the Court of Appeal that [translation] “the defence evidence related to peripheral aspects of the case” (para. 32). The defence rested on the overall lack of credibility and reliability of the complainant’s testimony and, of course, on Mr. Dinardo’s own testimony denying her allegations. In this context, it was incumbent upon the trial judge to explain, even in succinct terms, how he resolved these difficulties to reach a verdict beyond a reasonable doubt.

[30] I would like to emphasize that although the trial judge’s reasons fell short of the standard required to allow for meaningful appellate review in this case, there is no general requirement that reasons 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 (Braich, at para. 38). As Binnie J. stated in Sheppard:

[I]n the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it. [para. 60]

[31] As I explained at the outset of the analysis, the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues. In this case, the complainant’s truthfulness was very much a live issue — the trial judge recognized it as so during the voir dire to determine whether the complainant was competent to testify. At trial, two of the witnesses testified that the complainant could be untruthful and manipulative. While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, it was not open to him to do so without explaining how he reconciled the complainant’s inconsistent testimony, particularly in light of the accused’s own evidence denying her allegations.

[32] This Court emphasized in Sheppard that no error will be found where the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated” (para. 55). If the trial judge’s reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record. This exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge. Where the trial judge’s reasoning is not apparent from the reasons or the record, as in the instant case, the appeal court ought not to substitute its own analysis for that of the trial judge (Sheppard, at paras. 52 and 55).

…

[The] accused is entitled to know why the trial judge is left with no reasonable doubt.

(Gagnon, at para. 21)

The only indication of the trial judge’s reasoning process is his reliance on the corroborative value of the complainant’s prior consistent statements. This, as the majority of the Court of Appeal correctly found, constituted an error of law. ...