Today I read another view that made good sense to me.
Adam is inferior -- he was made of a base substance -- dirt. Eve was made from something better than dirt -- she was made from the beta model of humanity, Adam. Eve is the improved model; Adam the prototype.
Perhaps it's all myth and fable but this re interpretation seemed worthy to me.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
The appeal considers, and sets aside, the trial judge's decision to fix a large portion of the costs on a full indemnity basis absent a finding of sanction-worthy conduct on the part of the party against which the cost order was made.
The Court's analysis is worth reading in full but some relevant passages follow:
The Applicable Rules
[10] The award of costs is governed by section 131 of the Courts of Justice Act R.S.O. 1990, c.43 and by rules 49 and 57.01 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194.
[11] The general source of judicial discretion to award costs is found under s.131 of the Courts of Justice Act, as expanded by rule 57.01.
[12] Section 131 of the Courts of Justice Act says:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[13] Rule 57.01 reads as follows:
In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
…
(c) the complexity of the proceeding;
…
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding. (Emphasis added.)
[14] Rule 57.01(4) allows for elevated levels of costs:
57.01(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,
...
(c) to award all or part of the costs on a substantial indemnity basis;
(d) to award costs in an amount that represents full indemnity.
[15] "Substantial indemnity costs" is defined in rule 1.03 as "costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A". This part of Tariff A was once the prescribed grid for "partial indemnity costs", but is no longer in effect. "Full indemnity costs" is not a defined term but is generally considered to be complete reimbursement of all amounts a client has had to pay to his or her lawyer in relation to the litigation: see M. Orkin, The Law of Costs, looseleaf, 2nd ed. (Aurora, Ont.: Canada Law Book, 1993) at para. 219.05.
[16] Rule 49 deals with a specific aspect of costs: it is a self-contained scheme that addresses the manner in which offers to settle are brought into play. Its objective is to promote an offer of compromise and visit a cost consequence upon an offeree who rejects an offer that turns out to be as favourable as or more favourable than the judgment awarded to a plaintiff at trial. The parts of rule 49 relevant to this analysis are:
49.02(1) A party to a proceeding may serve on any other party an offer to settle any one or more of the claims in the proceeding on the terms specified in the offer to settle
...
COSTS CONSEQUENCES OF FAILURE TO ACCEPT
Plaintiff's Offer
49.10(1) Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,
and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.
Defendant's Offer
(2) Where an offer to settle,
(a) is made by a defendant at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.
...
49.13 Despite rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.
...
V. Analysis
[27] The parties take no issue with the general principles applicable to appellate review of costs decisions. The Supreme Court has made it clear that a costs award should be set aside on appeal only if the trial judge erred in principle or if the award was plainly wrong: see Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, at para. 27.
(1) The Costs Award on an Elevated Scale
The Jurisprudential Framework
[28] The first issue is whether the trial judge erred in relying on the February 2005 offer as justification for an elevated costs award. This court, following the principle established by the Supreme Court, has repeatedly said that elevated costs are warranted in only two circumstances. The first involves the operation of an offer to settle under rule 49.10, where substantial indemnity costs are explicitly authorized. The second is where the losing party has engaged in behaviour worthy of sanction.
[29] In Young v. Young, [1993] 4 S.C.R. 3, at p. 134, McLachlin J., described the circumstances when elevated costs are warranted as "only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties."
[30] The same principle was expanded upon in Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.), at p.23, where Robins J. A., speaking for the court, set out the restricted circumstances in which a higher costs scale is appropriate with reference to Orkin at para. 219.
An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to mark the court's disapproval of the conduct of a party in the litigation. The principle guiding the decision to award solicitor-and-client costs has been enunciated thus:
[S]olicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement. [2]
[31] The narrow grounds justifying a higher costs scale were further reinforced by Abella J.A. in McBride Metal Fabricating Corp. v. H. & W. Sales Co. (2002), 59 O.R. (3d) 97 where, at para. 39, she said:
:
Apart from the operation of Rule 49.10 (introduced to promote settlement offers), only conduct of a reprehensible nature has been held to give rise to an award of solicitor-and-client costs. In the cases in which they were awarded there were specific acts or a series of acts that clearly indicated an abuse of process, thus warranting costs as a form of chastisement.
See also: Walker v. Ritchie (2005), 197 O.A.C. 81 at para. 105, reversed on other grounds, [2006] 2 S.C.R. 428.
[32] At para. 14 of the reasons, the trial judge acknowledges the parties' agreement that rule 49 was not applicable to Blue Circle's February offer.
[33] This leaves egregious conduct, specifically the question whether in the circumstances of this case the settling defendants engaged in conduct worthy of sanction.
Strasser
[34] This takes me to Strasser, the case upon which the trial judge relied in awarding an elevated scale of costs following the February 2005 offer to settle and upon which Blue Circle heavily relies in this appeal.
[35] In Strasser, the plaintiff had originally claimed $1,000,000. After discovery, the defendant offered to pay $30,000. The plaintiff then reduced the claim to $70,000. The action was ultimately dismissed. In those circumstances, the trial judge awarded the defendant solicitor-and-client costs, throughout.
[36] In the plaintiff's appeal of the costs award, Carthy J.A., for the court, noted that although the defendant's offer was not a rule 49.10 offer, the language of rules 49.13 and 57.01 gives the trial judge discretion with respect to costs, and rule 49.13 specifically invites the judge exercising discretion to take into account any offer to settle made in writing. Carthy J.A. went on, however, to hold that the offer in Strasser could not, standing on its own, justify an award of solicitor-and-client costs. While the trial judge did not identify any evidence of reprehensible conduct, Carthy J.A., in upholding the award, was careful to note that during the costs submissions the trial judge did say "I think this case, in these circumstances, screams for solicitor-and-client costs:" p. 246.
[37] This court sought to clarify Strasser in Scapillati v. A. Potvin Construction Ltd. (1999), 44 O.R. (3d) 737, a case in which the defendant had served an offer to settle on the basis that the action be dismissed without costs and the trial judge subsequently dismissed the plaintiff's claim. Purportedly following Strasser, the trial judge awarded party-and-party costs to the date of the offer and solicitor-and-client costs thereafter.
[38] On appeal, this court started its analysis of the defendant's appeal of the costs award by observing, once again, that as the plaintiff's claim had failed, rule 49.10 had no application. Then, at p. 750, turning to Strasser, Austin J.A. had this to say:
[T]he principle upon which solicitor and client costs were awarded in Strasser is a very narrow one. The plaintiff had made a claim for $1 million, the defendant made an offer after discovery of $30,000 and the action was dismissed at trial. In the instant case, no similar offer was made. While the trial judge in the instant case made an award of solicitor and client costs, it does not appear from the record that she felt as strongly about it as the trial judge in Strasser who said "I think this case, in these circumstances, screams for solicitor and client costs."
[39] Thus interpreting Strasser as a case where egregious conduct was implicitly found, this court allowed the appeal as to costs, set aside the original costs award and substituted an award of costs on a party-and-party basis. For other cases in which comments have been made on the limited application of Strasser, see St. Louis-Lalonde v. Carlton Condominium Corporation No. 12 (2005), 142 A.C.W.S. (3d) 934 (Ont. S.C.) aff'd 155 A.C.W.S. (3d) 479 (C.A.), at para. 15, Dyer v. Mekinda Snyder Partnership Inc. (1998), 40 O.R. (3d) 180 (Ct. J. (Gen. Div.)).
[40] In summary, while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made. As Austin J.A. established in Scapillati, Strasser should be interpreted to fit within this framework - as a case where the trial judge implicitly found such egregious behaviour, deserving of sanction.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
"The government strongly believes that Parliament has the constitutional authority to enact a comprehensive federal securities act and is initiating preparatory steps in that direction," Minister of Justice Rob Nicholson said in a statement.
"In coming to this view, the government is supported by many of Canada's foremost constitutional experts. However, for greater certainty, we will be asking the Supreme Court for its opinion, which is why we are proceeding with this reference."
In July Quebec would go to the Quebec Court of Appeal in a bid to thwart Ottawa's plan to create a national securities regulator. Quebec wants the Court of Appeal to state that securities are a provincial jurisdiction and that any federal intrusion violates the Constitution. The Federal reference to the Supreme Court would forestall Quebec's move since a Supreme Court of Canada decision would trump a decision of the Quebec Court of Appeal.
Currently Canada is the only
major, developed economy without a centralised, national body regulating securities. Instead securities regulation is fragmented, with regulation administered provincially.
This leads to all thirteen provincial and territorial jurisdictions having their own independent set of rules governing the public offering and sale of securities.
Not only is their disparity across the country in the regulations themselves, but also in enforcement powers, tribunal mechanisms, priorities and sanctions.
The Canadian Constitution does not explicitly assign securities regulation to either level of government. Regulation has traditionally fallen to the provinces under the "property and civil rights" power of the Constitution (subsection 92(13)). The federal government also has jurisdiction over capital markets pursuant to its power to legislate in respect of "trade and commerce" under subsection 91(2) of the Constitution Act.
Ottawa claims that it can restrict provincial regulation by implementing a national securities regulator using the federal trade and commerce power (subsection 91(2) of the Constitution Act). There are those, including Quebec, who argue regulation of domestic trade in securities, as well as the regulation of corporate structures and capital arrangements, is a matter that is in pith and substance related to provincial responsibilities and any federal intervention in these matters is an intrusion on provincial jurisdiction.
Provincial jurisdiction must be respected, and failure to do so will certainly result in a constitutional challenge; as mentioned Quebec has already said it will oppose any Federal attempt to create a national securities regulator.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
The Canadian Press Harris-Decima survey put the Tories at 35 per cent nationally, compared with 28 per cent for the Liberals.
The NDP was at 15 per cent, while the Greens and Bloc Quebecois were tied at 10 per cent.
The Conservatives jumped to a four-point lead in Ontario with 40 per cent support, and they continued to dominate in the West.
However, the Tories trailed badly in Quebec at just 15 per cent - nine points back of the Liberals and 26 points behind the Bloc.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Today's Supreme Court of
The accused was charged in one indictment with counts related to two sexual assaults and breaches of undertakings. Both assaults occurred in the same city, approximately one month apart. S.M. testified that, after attending a night club with the accused, she went to his home in order to call a taxi. She testified that once inside the accused's home, he held her at gunpoint, choked her and repeatedly sexually assaulted her. M.A. testified that the accused accompanied a mutual friend to her apartment. After the friend left, the accused struck her across the forehead with a mug and choked her into unconsciousness. She was sexually assaulted with an object while unconscious. The accused applied to sever the counts in order to be tried separately in respect to each sexual assault. The trial judge denied the application. He found that there was a nexus in time and place but observed that he was "not persuaded that, at trial, the question of prejudice will be a significant factor at all" since "a modern jury should be able to handle the instructions given by [him] to avoid any meaningful possibility of prejudice". He did not put much weight on a statement by defence counsel that the accused might wish to testify on counts related to one incident but not the other. He held that the case was not complex, and that the possibility of inconsistent verdicts did "not loom large". This led him to conclude that the interests of justice did not require severance in this case. At trial, the accused was convicted on all charges and a majority of the Court of Appeal upheld the convictions.
The Court held the appeal should be allowed. The convictions should be set aside. The matter should be remitted to the Superior Court and the counts related to each complainant should be tried separately.
Section 591 of the Criminal Code, which governs the joinder of counts in an indictment, except for murder, places no restrictions on the number of counts that can be tried together on a single indictment. However, s. 591(3)(a) permits a court to order that the accused be tried separately on one or more of the counts where it is satisfied that the interests of justice so require. There are two grounds for intervention: unjudicial severance ruling or a ruling that result in an injustice. An inquiry into whether a judge acted unjudicially examines the circumstances prevailing at the time the severance ruling was made, while a review of whether the ruling resulted in an injustice will usually scrutinize the unfolding of the trial and of the verdicts. When deciding whether to sever counts, courts balance the risk of prejudice to the accused and the public's interest in a single trial. Factors that may be weighed when deciding whether or not to sever include prejudice to the accused, the legal and factual nexus between the counts, the complexity of the evidence, whether the accused intends to testify on one count but not another, the possibility of inconsistent verdicts, the desire to avoid a multiplicity of proceedings, the use of similar fact evidence at trial, the length of the trial having regard to the evidence to be called, the potential prejudice to the accused with respect to the right to be tried within a reasonable time and the existence of antagonistic defences as between co‑accused persons.
In this case, the trial judge failed to conduct a proper balancing of the relevant factors and made an unreasonable decision in denying the application for severance. All the factors must be considered and weighed cumulatively and most of them militated in favour of separate trials. Although the accused was likely to testify in respect to both assaults, the risk of prejudice to the accused in having a joint trial was significant because of the dangers of credibility cross‑pollination and prohibited propensity reasoning. Furthermore, there were no compelling countervailing reasons for having a joint trial. This case did not pose a risk of inconsistent verdicts, nor any substantial overlap in witness testimony or other evidence. The nexus of time and place between the counts did not explain why it was necessary, desirable or convenient to try the cases together. A joint trial did not serve any truth‑seeking interest and brought few if any benefits to the administration of justice. Considering the unlikelihood of a successful similar fact application, the gains in judicial economy usually achieved from avoiding multiple proceedings were absent in this case. Although a limiting instruction to the jury in an appropriate case can limit the risk of prejudice to the accused, courts should resort to limiting instructions only where sufficient countervailing factors provide a rationale for a joint trial. The significant risk of prejudice to the accused clearly outweighed any benefits to the administration of justice in trying the counts together. [41] [44‑45] [47]
This is not a case where the curative proviso should be applied. The Crown has not discharged its burden that despite the error of law, no substantial wrong or miscarriage of justice occurred.
EKOS is often an outlier but the numbers, and the trend, is concerning. That said, my sense is there is no election until next year and a lot can happen (will happen) before then.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
"I think we need to have this conversation sooner than later because this court challenge that's in front of us could ultimately mean the places that do exist could be legal overnight ... and if people are as worried as I am about that, they'd be inclined to start talking about the possibilities of that sort of district."
I agree the regulation of prostitution in Canada is absurd but reform is not to come from the municipal level. As for "red light districts", well, it didn't work so well in Boston. Combat Zone North anyone???
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
Yesterday’s brief Court of Appeal decision in 1730960 Ontario Ltd. (Re) , 2009 ONCA 720 contains the interesting observation that costs against non-parties are very rarely awarded:
Cost awards against non-parties always involve the exceptional exercise of judicial discretion. Absent fraud, abuse of the court’s process in general and the bankruptcy process in particular to serve a collateral purpose or similar wrongdoing, there is no basis for looking behind a moving party’s corporate legal personality to award costs against its parent.
The passage may be a useful reference when costs are sought against strangers to a litigation.
I saw a wonderful program which I would gladly take -- until I looked at the full title.
The Outlook display panel said:
"[Famous lawyer's name]'s guide to demons"
Who wouldn't want to go?
But then I opened the email and saw it was actually:
"[Famous lawyer's name]'s guide to demonstrative evidence"
Oh well... .
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
A broader public inquiry would be 'problematic,' lawyer says
By Robert Todd | Publication Date: Tuesday, 13 October 2009
In the wake of the privacy commissioner's scathing report last week on jury-vetting practices by Crown prosecutors, at least one group is calling for a broader inquiry.
"We would like to see a broader investigation with respect to the trial fairness aspect of this issue that probes more deeply into not just what has happened, but the broader implications of what has happened for particular trials and the justice system writ large," says Graeme Norton, a lawyer with the Canadian Civil Liberties Association.
He suggests that could happen without the creation of a "full-blown public inquiry," but others aren't so sure that would be a good move.
"Really, the only question now is what will be the effect on appeals, and a public inquiry would be problematic in terms of appeals because it could lead to issues being before the court the same time they're before a public inquiry," says lawyer and Ontario Bar Association past president James Morton. "It's something that's problematic."
The comments follow last week's release of a report by Information and Privacy Commissioner Ann Cavoukian, who began her investigation in May after media reports alerted her to jury-vetting practices in Barrie and Windsor.
The reports included references to jury lists that included information about prospective jurors such as "calls a lot for minor complaints," "neighbour shot his cat," and "dad is a drinker," noted Cavoukian. Juries tainted by the practice have led to a pair of mistrials.
She has now ordered Crown lawyers to stop gathering personal information on potential jurors that is not permitted by the Juries Act or the Criminal Code.
Cavoukian has also suggested the Ministry of the Attorney General put in place a centralized juror screening process that will eliminate the need for individual Crown offices to conduct their own research. She suggested the ministry's provincial jury centre be the hub of that new system.
Some of the commissioner's most striking findings include the discovery that 18 out of the province's 55 Crown offices received background information on prospective jurors from police since March 2006. That's up from the four locations previously identified through media reports.
All of the offending offices collected information beyond the criminal conviction eligibility criteria permitted by the legislation. Cavoukian noted that the practices also breached privacy laws.
At times, Crowns didn't share the information with defence counsel, she said.
The worst offender was the Crown office in Barrie and Simcoe County. The commissioner estimated there were 53 jury trials involving that office in which jury vetting occurred without sharing the information with defence counsel.
In all, Cavoukian estimated that there were 143 trials across the province in which jury vetting may have happened.
The background checks ranged in depth, from narrow checks on criminal convictions to broad background checks of any information available on the potential juror.
"In coming forward to perform one's civic duty, citizens should be thanked, not burdened," wrote Cavoukian in the report.
"They should not be concerned about the prospect of any excessive background checks being conducted or that such checks will unearth personal details of their lives."
She placed much of the blame on a lack of direction offered to Crowns from the Ministry of the Attorney General. She noted that the ministry first took note of the jury-vetting problem in 1993 after an Ontario Superior Court judge questioned the practice.
Weeks later, a senior Crown lawyer issued a memorandum stating, "if the defence can't have it, we shouldn't be getting it either," according to the report. That led to a recommendation within the ministry that the practice should end.
However, a practice memorandum on the issue didn't come into force until March 31, 2006. The lack of clarity led to "a patchwork of practices developed across the province," said Cavoukian.
Morton says a certain level of jury vetting is acceptable. But he says the privacy commissioner's report shows that some prosecutors went too far.
"There's no reason why a prosecutor should not ask around, the same way that defence counsel, in a smaller community particularly, can ask around to try and figure out a little bit of background about jurors," he says.
"But when databases created for one purpose are used for a totally different purpose, that's clearly, to my mind anyway, a breach of privacy legislation. And it's giving an unfair advantage to the prosecution, an advantage that looks badly for the administration of justice."
Morton says he doesn't believe vetting negatively influenced most jury decisions but suggests it "feeds into a sense, perhaps an unfair sense, that the system is not fair, that it's a system where advantage is taken."
Morton doesn't believe Crown lawyers involved in jury vetting should face sanctions. He says the practice seems to have been widespread and not unethical or "underhanded."
"I don't think there's any issue of any discipline or any wrongdoing of that nature," he says.
"I would put it more along the lines of something that was common in the profession that turned out to be an error. We've seen that in real estate, in family, in all kinds of areas of the law. So it's something that should be corrected for the future, and if problems were caused, if there were miscarriages of justice, they should be repaired as best they can be."
Thomas Hewitt, president of the Ontario Crown Attorneys' Association, says Crowns will welcome the new guidelines offered through Cavoukian's report.
"I think with clarifying the rules, as [Cavoukian] points out, people will recognize that Crowns are working in a very difficult position and were working with very unclear guidelines and were doing the best job they could," says Hewitt.
The privacy commissioner has "taken an extremely thorough approach to this," says Hewitt, suggesting a further public inquiry is unlikely to shed new light on the issue.
Still, he wouldn't speculate on possible repercussions for Crowns involved in jury vetting.
"The sanctions for Crowns involved in this, that's not part of my business," says Hewitt. "Certainly that'll be something that the Ministry of the Attorney General and the law society will deal with."
The Ministry of the Attorney General didn't respond by press time to Law Times' requests for an interview with Attorney General Chris Bentley.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
The son of Justice of the Peace David Lippingwell passed away over the weekend. I have included the arrangements in today’s Toronto Star below.
JAMES LIPPINGWELL
Unexpectedly at home in
Today’s decision in R. v. Wadforth, 2009 ONCA 716 is a helpful review of sufficiency of reasons regarding credibility:
[66] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise: M. (R.E.) at para. 49; R. v. Gagnon, [2006] 1 S.C.R. 621, at para. 20. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses’ credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: Gagnon at para. 20.
[67] No uniform standard of detail exists by which we can determine the sufficiency of reasons that describe findings on credibility. The degree of detail required to explain these findings will vary with the evidentiary record and trial dynamics: M. (R.E.) at para. 51. Findings on credibility must be made with regard to the other evidence in the case, thus the need to make at least some reference to the contradictory evidence. In the end, the detail provided must demonstrate that the trial judge has seized the substance of the issue in the case tried. While no detailed account of all conflicting evidence is mandated, in a case where credibility is critical, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of all the evidence adduced at trial, raises a reasonable doubt about the accused’s guilt: R. v. Dinardo, [2008] 1 S.C.R. 788, at paras. 23 and 30; M. (R.E.) at para. 50.
[68] Appellate review of reasons for sufficiency starts with deference to the trial judge’s findings of fact. Appellate intervention must be rooted in a functional failing in the trial judge’s reasons for decision. The reasons, read in the context of the evidentiary record and the live issues at trial, must fail to reveal an intelligible basis for the verdict, capable of permitting meaningful appellate review: Sheppard at para. 28; M. (R.E.) at para. 53.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
