Insufficiency of reasons

Today's Court of Appeal decision in R. v. Wigle, 2009 ONCA 604 gives a good summary of the appeal court's role in reviewing a decision based upon insufficiency of trial reasons:

[29] The Supreme Court of Canada has cautioned appellate courts about the limited parameters of appellate review based on a challenge to the sufficiency of a trial judge's reasons.

[30] Insufficiency of reasons is not a stand-alone ground of appeal. In R. v. R.E.M., [2008] 3 S.C.R. 3at para. 25, the Supreme Court quoted from R. v. Braich, [2002] 1 S.C.R. 903, which, in turn, cited the principle from para. 33 of Sheppard, that "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".

[31] A trial judge's reasons are sufficient if they explain to the parties why the decision was made, provide public accountability, and permit appellate review: see R.E.M., at paras. 11 and 15.

[32] In deciding whether reasons are sufficient, appellate courts are instructed to take a functional approach asking whether the trial reasons achieved the three purposes of explanation, accountability and reviewability. Even if the reasons, standing alone, do not satisfy their intended functions, the appellate court must turn to the trial record and its context to identify and attempt to communicate the basis for how and why the trial judge arrived at the decision. Only if that basis cannot be identified from the record will the appellate court order a new trial: see R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 28 and 50.

[33] In R. v. Dinardo, [2008] 1 S.C.R. 788, Charron J. underscored the importance of a trial judge's credibility findings to the sufficiency of reasons. She observed at para. 26 that "[n]evertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error". Further, at para. 29, Charron J. noted that, in the context of the focus on the complainant's credibility and the testimony of the accused denying the allegations, "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."

[34] In the circumstances of that case, the court reasoned at para. 31:

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 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.

[35] The court in R.E.M. also specifically commented about the approach to credibility findings in determining the sufficiency of reasons. The court noted at paras. 49 and 48 the "delicate" nature of credibility findings and the difficulties faced by trial judges in articulating and verbalizing the "complex intermingling of impressions" that underlie such determinations. R.E.M. referred to Dinardo regarding the sufficiency of credibility findings and noted at para. 50 that credibility findings, which "must be made with regard to the other evidence", "may require at least some reference to the contradictory evidence."

[36] Before coming to a conclusion about the sufficiency of reasons challenged on the basis of credibility issues, an appellate court will review the reasons in the context of the whole of the record and the circumstances of the case to determine from this review the basis for the trial judge's credibility findings. As McLachlin C.J. explained the approach at para. 55 of R.E.M.:

The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions.

[37] However, the court also explained at para. 56 that the trial judge need not "describe every consideration leading to a finding of credibility" and that "[r]easonable inferences need not be spelled out." Indeed, it is important to note that a trial judge is under no obligation to deal with every piece of evidence in arriving at his or her factual findings. Nonetheless, the court further observed, at para. 57, that to permit meaningful appellate review, reasons must disclose "the foundation of the conviction."