Friday, February 22, 2013

Adequacy of reasons

R. v. Burnie, 2013 ONCA 112 is yet another adequacy of reasons case:

[28]    It is a well-established legal principle that the reasons a judge gives in a criminal trial without a jury fulfill an important function in the trial process and where that function goes unperformed, the judgment may be vulnerable to reversal on appeal: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.

[29]    Speaking on behalf of the Supreme Court in Sheppard, Justice Binnie noted, at para. 21, that it is a reviewing court's task, "not so much to extol the virtues of giving full reasons, which no one doubts, but to isolate those situations where deficiencies in the trial reasons will justify appellate intervention and either an acquittal or a new trial".    

[30]    As the court laid out in Sheppard, at para. 28:

The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge's reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge's decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.

[31]    However, the Court also emphasized, at para. 33, that the absence or inadequacy of reasons is not a freestanding ground of appeal:

A more contextual approach is required. 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.

[32]    The Court formulated three categories of cases in which deficient reasons could occasion such prejudice:

1.            Allegation of unreasonable verdict cases;

2.            Allegation of error of law cases; and

3.            Miscarriage of justice cases.

[33]    Upon my review of the record, the present case falls under the second category of cases. Under this category, the issue is whether, short of an unreasonable verdict, the trial judge's reasons fail to articulate reasons in relation to key issues. If so, the appropriate remedy is to order a new trial. As Justice Binnie described, at para. 42, "for purposes of appellate review, the duty to give reasons is driven by the circumstances of the case rather than abstract notions of judicial accountability." Again, he explained, at para. 46:

[W]here the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [Emphasis removed.][34]    Finally, in his helpful but non-exhaustive propositions of law, at para. 55, Justice Binnie makes two points that are apposite to the present case:

Reasons acquire particular importance when a trial judge is called upon to…resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.

While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

[35]    Two issues permeate the record in this case. First, there was ample evidence of the opportunity for the complainants and witnesses to have colluded. The trial judge acknowledged as much when he indicated, albeit in his summary of the appellant's position on the similar fact application, that "[t]he girls talked with each other. They discussed what had happened.".

[36]    While I accept that there was no direct evidence that specific collusion or even a motive to collude existed, there was at least the opportunity for the complainants and the witnesses to have influenced and contaminated each other's independent perspectives and recollections of the events through their communication of the events with each other, and their interaction leading up to and during their revelation of the events to their teacher and the principal. As this court held in R. v.  B.(C.) (2003), 171 C.C.C. (3d) 159, at para. 40:

Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events.

While this by no means necessarily makes the complainants' or witnesses' evidence valueless, the opportunity for collusion must nonetheless be adequately addressed in this case.


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