R. v. E.M.W. and R. v. O’Brien: Playing with Words, Playing with Fire
A trial judge is not required to itemize every conceivable issue, argument or thought process in his or her reasons. Trial judges are entitled to have their reasons reviewed based on what they say, not on the speculative imagination of reviewing courts. Here, the trial judge expressly stated that he relied only on the DNA evidence and made no mention of the character evidence in his reasons.
– Abella J. in R. v. O’Brien
The trial judge’s reasons show that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailed reasons.
– McLachlin C.J. in R. v. E.M.W.
The month of June has seen not one but two important statements from the Supreme Court of Canada on criminal procedure and evidence. In R. v. O’Brien, the majority of the Supreme Court, led by Abella J., seemed inclined to take a trial judge’s words at face value. If the trial judge asserts that his decision was based “entirely” on DNA evidence, then any error in law could only be harmless and could not constitute a substantial wrong or miscarriage of justice. One week later, the majority of the Court in R. v. E.M.W. adds another wrinkle: even if the trial judge did not directly address the inappropriate aspects of the trial, it may be inferred from his reasoning that he did in fact give them appropriate weight (“alive to the concerns”).
Put together, the logic behind these two statements from our top court is confounding. Unraveling the logic, these two cases, particularly the more recent case of R. v. E.M.W., reveal a growing uncertainty about judicial decision-making at the lower court levels.
A Divided Appellate Court:
E.M.W. was convicted of sexually assaulting his young daughter after he stood trial before a judge alone. The defendant subsequently appealed the decision. At the Court of Appeal, the majority allowed the appeal from conviction and ordered a new trial for the reason that a miscarriage of justice had taken place. The dissenting judge, Fichaud J.A., argued that a miscarriage of justice could not be established. Even if it could be established, the majority had failed to raise the grounds for it in the Notice of Appeal.
Against the Current: Fish J.’s Dissent in R. v. E.M.W.
Usually, when a case has been backed by a majority decision from the Court of Appeal, the Supreme Court returns a unanimous decision. In the case of R. v. E.M.W. decided last week, the Court ended up with a very uncommon 6-1 split. Fish J. was the sole voice of dissent. His message? The issues in this case notuncontroversial.
(Interestingly, Fish J. abstained from the decision in R. v. O’Brien while LeBel J. abstained from this decision. One could imagine that those two more liberal-leaning justices would have sided with each other. Binnie J., in contrast, dissented in the earlier case of R. v. O’Brien but agreed with the majority inR. v. E.M.W.)
While McLachlin C.J., writing for the majority of the Court, teases out three main issues in the case – jurisdiction, evidence and trial procedure – Fish J. focuses solely on the last issue. In his dissent, Fish J. takes issue with how the trial judge conducted the court. “I have concluded that the respondent’s trial was unsatisfactory ― notably because of the inappropriate and prejudicial cross-examinations of the respondent and N.L., the complainant’s grandmother, who was an important defence witness.” At this point, Fish J. does not necessarily deviate too far from his colleagues on the Court. The majority of the Court acknowledges that errors were made during the initial proceeding and that, as a whole, “the trial was far from perfect.” Fish, however, refuses to buy into the majority’s reasoning that, if the trial judge’s understanding of the evidence as a whole and the proceeding overall were sound, then these errors could not have given rise to a miscarriage of justice. Rather, Fish assertively states at the end that, “I recognize that the trial judge delivered detailed and thoughtful reasons for concluding as he did… In my respectful view, however, they cannot set right the unsatisfactory nature of the trial.”
Fish Out of Water?
While Fish does not concern himself with the issues of jurisdiction and evidence, these issues remain contentious in R. v. E.M.W. The majority of the Court first turns to the issue raised by Fichaud J.A. – did the Court of Appeal even have jurisdiction to hear the issue of the miscarriage of justice?
Here, the Court seems very comfortable granting additional discretion to the lower courts. Summarizing their position, McLachlin states that, “We agree with the respondent that the failure to expressly raise miscarriage of justice as a distinct ground of appeal does not deprive a Court of Appeal of jurisdiction to consider that issue. A potential miscarriage of justice is always something a court must be able to consider [italics added].”
This position adopted by McLachlin seems sensible, granting an appropriate degree of discretion to the Court of Appeal to ensure that technicalities do not get in the way of a fair and full hearing. As well, it is very sensible for McLachlin to note that it is part and parcel of good practice to grant an adjournment in cases where the court wishes to explore an issue that has not yet been raised.
b. Improper Use of Evidence
At this point, the majority of the Court sets their sights on the trial judge. One of the reasons why the Court of Appeal set aside the conviction and ordered a new trial is that they deemed the trial judge to have improperly used evidence. The defendant had made statements to a friend and the police prior to testifying at trial. These statements were brought up or at least alluded to during the trial, so as to give an unfair advantage to the prosecution. The Supreme Court’s position on this issue seems to be somewhat controversial: “In our view, the majority of the Court of Appeal was wrong to seize on the trial judge’s reference to the content of the complainant’s disclosures to show that he had improperly used the evidence about these disclosures. The trial judge’s careful and thorough reasons when read as a whole in light of the trial record do not support the inference drawn by the majority of the Court of Appeal.”
McLachlin C.J. appears to be putting forth the argument that the Court of Appeal was making too big of a deal of the fact that the trial judge had referred to evidence that was not properly gathered (“it was wrong to seize on…”). The majority of the Court opts to not directly challenge the Court of Appeal as to whether these references constitute an improper use of evidence in and of themselves. Taken within the context of the rest of the trial judge’s carefully reasoned decision – taken “as a whole” in the words of the Court – these references do not constitute an improper use of evidence, however.
c. Miscarriage of justice
It is the issue of miscarriage of justice that forces Fish to separate himself from the crowd. Both he and the majority of the Court agree that the trial, in one way or another, was unsatisfactory. They point to different reasons, however: McLachlin points to “tasteless” and “unsavory” questions that were asked or statements that were made and the “unnecessary” soliloquizing on personal matters by the Crown counsel; Fish, on the other hand, is dissatisfied with the “inappropriate and prejudicial cross-examinations of the respondent and N.L., the complainant’s grandmother, who was an important defence witness.” McLachlin does not refute that the trial was conducted inadequately. Rather, she and most of her colleagues have read those inadequacies into the trial judge’s decision: “The trial judge’s reasons show that he was alive to the concerns raised by inappropriate aspects of the trial, and took them into account in his careful and detailed reasons.” For that reason, “the shortcomings of the trial… did not, in this case, result in a miscarriage of justice.” The majority of the bench Court insists that the trial judge had mitigated the potential miscarriage of justice, as they found the judge to have implicitly acknowledged it in his well thought out decision.
R. v. O’Brien and R. v. E.M.W.: Two Sides of the Same Coin?
Regarding the implicit acknowledgment of the potential miscarriage of justice, Fish J. rightly questions whether the Court is giving the trial judge too much credit in R. v. E.M.W. Thus, R. v. O’Brien is really a different side of the same coin. LeBel J. and Binnie J. question if the Court is giving the trial judge too much credit when he is taken at his word completely. Just because the trial judge states that his conclusion arose out of admissible evidence does not mean that the inadmissible evidence, character evidence, for example, played no part in shaping the judge’s conclusion and, thus, should be allowed.