When are a Trial Judge’s Reasons Sufficient?

Last Thursday the Supreme Court of Canada (“SCC”) decided on two companion cases, R v REM[2008] 3 SCR 3 [REM] and R v HSB[2008] 3 SCR 32 [HSB], both of which concerned sexual abuse convictions that were overturned on appeal on the basis that the trial judge’s reasons were inadequate. In both instances the SCC reinstated the original convictions and clarified the benchmark by which to evaluate the sufficiency of a trial judge’s written reasons.

Facts of R v REM

In REM, the accused was charged with sexually abusing his stepdaughter, the complainant, over an eight-year period when she was between the ages of 9 and 17. When she was 16 the complainant gave birth to a baby whom she had conceived with him. The accused was charged with four offences covering eleven acts of abuse and he was ultimately convicted of three of them. However, in his reasons, the trial judge did not relate any of the eleven incidents, on which evidence had been led, to the specific offences with which the accused was charged.

The British Columbia Court of Appeal (“BCCA”) was dissatisfied with the trial judge’s written reasons and ordered a new trial. Specifically, the court felt that the judge’s reasons did not adequately express consideration of the defence evidence and failed to explain how the complainant’s credibility was reconciled with the rejection of some of her evidence. The court therefore concluded that the trial judge’s reasons did not meet the minimum standard for sufficiency.

Facts of R v HSB

HSB also involved the sexual abuse of a child. The complainant in this case alleged that the accused committed fourteen acts of sexual abuse against her over several years and threatened to kill her when she was 14 years old. The trial judge convicted the accused of all four charges relating to the abuse and the threat. However, in a strange move before sentencing, the judge re-opened the trial to permit the accused to argue an alibi defence and to lead evidence on the issue of whether his employment schedule prevented him from sexually abusing the complainant during the period in question. The trial judge ultimately rejected this defence because the evidence failed to raise a reasonable doubt, and the convictions were upheld.

On appeal, the BCCA overturned the convictions and ordered a new trial on the basis that the trial judge’s reasons were insufficient, despite there being no submissions from defence counsel related to that argument. The appellate decision paralleled what happened in REM, with Thackray J.A. holding that the trial judge in HSB “failed to explain how he overcame the conflicting evidence to find in favour of the complainant’s credibility.” Thackray J.A. said that the trial judge’s reasons also did not properly address inconsistent witness testimonies.

Both cases illuminate the evidentiary difficulties of establishing sexual abuse involving minors, but they are also important for explaining what constitutes sufficiency in a judge’s written reasons.

What makes a trial judge’s reasons sufficient?

In both cases, the SCC reinstated the original convictions, concluding that the respective trial judges provided sufficient reasons. The Court said that, while there is no common law duty for an adjudicative body to disclose its reasons for a decision, the criminal law is one context where written reasons are mandatory. The Court gave three rationales for why trial judges must give reasons: (1) to explain to the affected parties why the decision was made; (2) to provide public accountability; and (3) to permit effective review by appellate courts. Written reasons are sufficient when, in their entirety and in the context of the evidence, they perform these three functions.

Because the purpose of having written reasons is “not to show how the judge arrived at his or her decision [but] rather to show why the judge made that decision” (emphasis in original), the sole requirement is that the judge demonstrate “a logical connection between the ‘what’ – the verdict – and the ‘why’ – the basis for the verdict.”

The Court also clarified the role of context in a trial judge’s reasons, stating that an evaluation of sufficiency must also look at the trial record, the issues, and the submissions of counsel. The need to consider context when looking at a trial judge’s reasons makes it clear that the judge is not required to provide detailed explanations of every single finding or descriptions of all evidence. The judge is also not required to recite every principle of law, especially if those principles are well-settled and uncontroversial. The level of detail in the judge’s reasons, the Supreme Court explained, will depend circumstantially on whether the basis of the decision is clear from the record.

With regard to whether trial judges should have to explain their findings of credibility, the Court stated that the only requirement is that the judge must show, in the written judgment, that he or she “has seized the substance of the issue.” The Court recognized that a trial judge may make decisions on credibility based on factors that are inarticulable in writing, and it therefore refrained from insisting that judges address contradictory evidence in their reasons; this was the basis of the BCCA’s dissatisfaction with the trial judgments in these cases.

Curiously, in HSB the trial judge submitted two sets of reasons, one dealing with the original evidence and the other dealing with the fresh evidence that the accused lead for his alibi defence. The SCC concluded that, despite the complications that this bifurcation created, it was not fatal to the decision-making. The Court also addressed the curious matter of the trial judge re-opening the trial to accept new evidence after he had already entered a guilty verdict, saying this is “highly unusual and not the desirable way to proceed.”

The SCC’s judgments in both REM and HSB make it clear that an appellate court’s authority to overturn a trial judge’s decision on the basis of insufficient reasons is severely limited. An appellate court should always show deference to the trial judge, and can only declare her reasons insufficient if they provide no foundation for conviction:

Appellate courts must ask themselves the critical question […]: do the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?

There is a risk that the Court’s decision in these two cases will lead to barer-boned judgments from trial judges. Now that the Court has allowed the use of the trial record and other contextual instruments to fill in the gaps of a written decision, some trial judges may be tempted to write more skeletal reasons. However, the risk is unlikely and outweighed by the consequences of raising the standard of sufficiency. Require trial judges to write more comprehensive reasons would clog the criminal justice system with retrials, since decisions that did not carefully detail every step of the judge’s reasoning process would be deemed inadequate. Raising the standard would also necessitate greater intervention from appellate courts in evaluating a trial judge’s performance. Instead, the SCC’s decision treats trial judges with greater deference and encourages greater efficiency in the criminal process.

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