Meaningful decision for review on appeal

Sometimes Supreme Court of Canada majority decisions are not very helpful. Today’s majority reasons in R. v. Szczerbaniwicz, 2010 SCC 15 say very little but the dissent has an interesting discussion of when reasons are sufficient for appeal purposes. The majority’s brief comment, on this issue, in dismissing the appeal is:

In the absence of any palpable and overriding error in his appreciation of them, it is not open to an appellate court to sift selectively through the record and substitute its own narrative and outcome: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 56. Seeing no error either in the trial judge’s appreciation of the facts or in his application of the relevant law, a majority in the appeal court dismissed the husband’s appeal. Based on the record and the trial judge’s reasons, I agree with this disposition.

The dissent is far more detailed and while it is of limited use (being the dissent) it is worth taking a moment to read:

[32] If “the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision” then reversible error may result (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28). This is precisely the difficulty here identified by the appellant’s counsel:
. . . my friend [the Crown] has said that there were alternatives and that the trial judge had these in mind, that a person could be moved with greater or lesser levels of force and he should not have pushed her that hard. The problem is that the trial judge didn’t say anything about this. This is an area that is not covered at all in the judgment and that Justice Lutfy [dissenting in the court below] focussed on; that he [the military judge] didn’t address the circumstances of the encounter on the stairs, that’s the problem, and that’s why the alternatives were not canvassed at all.
(Transcript, at p. 43 (emphasis added))

[33] Section 39(1) is intended to protect individuals who act in defence of their personal property provided they use no more force than is reasonably “necessary”. What is necessary must not be disproportionate to the injury or harm it is intended to prevent. The accused must have a subjective belief of the necessity, and the belief must be based on reasonable grounds: R. v. Weare (1983), 56 N.S.R. (2d) 411 (C.A.), at paras. 16-18, and R. v. Little (1998), 122 C.C.C. (3d) 364 (Ont. C.A.), at para. 14.

[34] Of course, the appellant’s use of force against Mrs. Szczerbaniwicz was both morally objectionable and deeply unfortunate, as was fully recognized in retrospect by the appellant himself, but the issue here is one of criminality. The law says that the appellant was entitled to go to the defence of his property. The legal question before the military judge was whether the appellant was justified under s. 39(1) in using the measure of force that he did.

[35] The prosecution accepts that the appellant was acting in defence of property that was of considerable sentimental importance to him, as Mrs. Szczerbaniwicz fully appreciated at the time. The cases are clear that in these sort of “quick response” situations an accused is not expected to “weigh to a nicety” the exact measure of a defensive action or to stop and reflect upon the precise risk of consequences from such action: R. v. Baxter (1975), 27 C.C.C. 2d 96 (Ont. C.A.), at p. 111; R. v. Kandola (1993), 80 C.C.C. (3d) 481 (B.C.C.A.), at pp. 489-90, citing Palmer v. The Queen (1971), 55 Cr. App. R. 223 (P.C.), at p. 242. The principle is of long standing: R. v. Ogal (1928), 50 C.C.C. 71 (Alta. S.C., App. Div.); R. v. Preston (1953), 106 C.C.C. 135 (B.C.C.A.), at p. 140, and R. v. Antley, [1964] 2 C.C.C. 142 (Ont. C.A.), at p. 147.
…

[37] In his reasons, the military judge did cover what R.E.M. labels the “what” of the case, i.e. the finding that the use of force was excessive, but he was required by the jurisprudence to go further and describe the “why” he reached the conclusion that he did:

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. . . . Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” — the verdict — and the “why” — the basis for the verdict. [Underlining in original; italics deleted.]
(R.E.M., at para. 17)
In my view the military jud
ge’s reasons do not disclose to the appellant or to the appellate court the “logical connection” between the “what” and the “why”. As earlier stated in Sheppard:
At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be. [para. 25]

We do not know, and the appellant cannot know, why the military judge found the intervention disproportionate to what was reasonably required in all circumstances.