Sufficient reasons required

R. v. D.A., 2012 ONCA 200 is a good illustration of the need for trial judges to be careful in giving reasons that fully set out the basis for judgment.

In R v. Sheppard [2002] 1 S.C.R. 86, the Supreme Court clearly recognized a duty on trial judges to give adequate reasons. This was based on several important grounds:

● Facilitating review. "Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render." Losing parties need to know why they lost so informed consideration can be given to grounds for appeal.

● Transparency. The public deserves to know the outcomes of cases and why they were decided in the way that they were: "[i]nterested members of the public can satisfy themselves that justice has been done, or not, as the case may be."

● Accountability. "Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts."

In D.A. the trial court failed to give sufficient reasons and a new trial was ordered:

[11] The trial judge acknowledged at the outset of his reasons that the case was a complicated one, requiring careful consideration of the evidence. With respect, what followed completely failed his own litmus test. His half page of analysis was anchored in his belief of the complainant based on his "behaviour pattern", being that of "a scared boy", coupled with the fact some classmates (unnamed) had supported the complainant's story (without explaining how they did so). There was no analysis of the internal contradictions in the Crown evidence or how the trial judge reconciled the many inconsistencies between the Crown and defence evidence. While a trial judge is not obligated to refer to all of the evidence or to exhaustively explain his reasoning process, the combination of unacknowledged evidence supporting the defence position and an almost complete paucity of analysis compel the conclusion that the trial judge failed to consider the whole of the evidence in deciding the case: see R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 13, 14, and 18-19.

[12] I can illustrate this conclusion with a couple of striking examples.

[13] First, the trial judge concluded that "this extortion did take place". The Crown led evidence about five possible extortions. The trial judge did not say which of these grounded his finding of guilt, notwithstanding the serious questions raised by the defence about these five incidents. For example, there was much evidence that the zoo incident did not amount to an extortion: the complainant testified that he had given money away voluntarily on that trip, many other witnesses confirmed that the complainant was giving away money, and no one saw anyone forcibly take money from the complainant. Similarly, there was strong conflicting evidence about the alleged iPod theft. In these circumstances, the trial judge had a duty to state clearly the conduct that, in his view, amounted to the extortion.

[14] Second, the fifth possible extortion set out above was grounded in an alleged telephone conversation between the three accused and the complainant, with confirmation coming from the complainant's mother's testimony that she overheard the conversation. However, the complainant said nothing in his statement to police about this telephone call or any conversation with his mother about it. Moreover, the complainant did not mention this call in his examination-in-chief.

[15] Similarly, the complainant's mother mentioned this call, for the first time, when she went to the police in mid-trial, after her son had been testifying for two days. She did not mention this incident to the police when she gave a statement in October 2007 and only raised it in a second, mid-trial statement to police in January 2009.

[16] The trial judge dealt with none of this context surrounding the alleged telephone call. All he said was that the testimony of "[t]he parents" supported the complainant's evidence. In light of the obvious problems concerning the timing of the reporting of the telephone conversation by both the complainant and his mother, the trial judge had a duty to provide some analysis to support his general and laconic conclusion.

[17] In the end, we know from the trial judge's reasons only who he thought had committed the crime of extortion: the appellant and his two co-accused. We do not know the what, when, where or why of the criminal conduct. In any criminal trial, but especially one involving a young offender, this is not good enough. Given this error and its magnitude, it is not necessary to deal with the other arguments raised by the appellant.