Appeal-Judicial Review - Reasons - Post-Sheppard SCC Cases. R v R.E.M.
In R v R.E.M. (SCC, 2008) the Supreme Court of Canada thoroughly canvassed the current law of 'reasons', at para 8-57.
. Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231
In Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231 (Ont CA, 2020) the Court of Appeal held that the R.E.M. case principles, while from a criminal case, apply to civil cases as well:
 On appeal to a single judge of the Divisional Court, the court found that the trial judge's reasons were insufficient to allow for meaningful appellate review as required by the test set out in R. v. R.E.M., 2008 SCC 51 (CanLII),  3 S.C.R. 3, at para. 17 While R.E.M. was a criminal case, these principles apply equally to reasons given in civil cases: D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356 (CanLII), at para. 35; F.H. v. MacDougall, 2008 SCC 53 (CanLII),  3 S.C.R. 41, at paras. 97-101.. R. v. G.F
In R. v. G.F (SCC, 2021) the Supreme Court of Canada took the oppourtunity to re-state the law of the adequacy of reasons [since R v Sheppard (SCC, 2002)]:
(1) Appellate Review of Trial Reasons
 The importance of trial reasons should not be understated. It is through reasoned decisions that judges are held accountable to the public, ensuring transparency in the adjudicative process and satisfying both the public and the parties that justice has been done in a particular case: R. v. Sheppard, 2002 SCC 26,  1 S.C.R. 869, at paras. 15, 42 and 55; R. J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at p. 134. However, this Court in Sheppard emphasized that, for the purposes of appellate review, “the duty to give reasons is driven by the circumstances of the case rather than abstract notions of judicial accountability”: para. 42. On appeal, the issue is whether there is reversible error. What is required are reasons that are sufficient in the context of the case for which they were given.
 This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient: Sheppard, at paras. 28-33 and 53; R. v. Gagnon, 2006 SCC 17,  1 S.C.R. 621, at para. 19; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41,  3 S.C.R. 129, at para. 101; R. v. Dinardo, 2008 SCC 24,  1 S.C.R. 788, at para. 25; R. v. R.E.M., 2008 SCC 51,  3 S.C.R. 3, at para. 15; R. v. Laboucan, 2010 SCC 12,  1 S.C.R. 397, at para. 16; R. v. Vuradin, 2013 SCC 38,  2 S.C.R. 639, at paras. 10, 15 and 19; R. v. Villaroman, 2016 SCC 33,  1 S.C.R. 1000, at para. 15; R. v. Chung, 2020 SCC 8, at paras. 13 and 33. Appellate courts must not finely parse the trial judge’s reasons in a search for error: Chung, at paras. 13 and 33. Their task is much narrower: they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., “The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”: para. 17. And as Charron J. stated in Dinardo, “the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues”: para. 31.
 This Court has also emphasized the importance of reviewing the record when assessing the sufficiency of a trial judge’s reasons. This is because “bad reasons” are not an independent ground of appeal. If the trial reasons do not explain the “what” and the “why”, but the answers to those questions are clear in the record, there will be no error: R.E.M., at paras. 38-40; Sheppard, at paras. 46 and 55.
 The reasons must be both factually sufficient and legally sufficient. Factual sufficiency is concerned with what the trial judge decided and why: Sheppard, at para. 55. Factual sufficiency is ordinarily a very low bar, especially with the ability to review the record. Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from the record may explain the factual basis of the finding to the aggrieved party: para. 52. It will be a very rare case where neither the aggrieved party nor the appellate court can understand the factual basis of the trial judge’s findings: paras. 50 and 52.
 Sheppard itself was such a case. The trial judge’s reasons for conviction read, in their entirety:
Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged. [paras. 2 and 10] This Court found that these reasons were factually insufficient because the pathway the trial judge took to the result was unintelligible: Sheppard, at para. 60. It was simply not possible for the parties, counsel, or the courts to determine why the trial judge found as he did: paras. 2 and 61-62.
 Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal: Sheppard, at paras. 64-66. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred: paras. 46 and 55. Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial. A trial judge is under no obligation to expound on features of criminal law that are not controversial in the case before them. This stems from the presumption of correct application — the presumption that “the trial judge understands the basic principles of criminal law at issue in the trial”: R.E.M., at para. 45. As stated in R. v. Burns, 1994 CanLII 127 (SCC),  1 S.C.R. 656, at p. 664, “Trial judges are presumed to know the law with which they work day in and day out”: see also Sheppard, at para. 54. A functional and contextual reading must keep this presumption in mind. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles.
 Conversely, legal sufficiency may require more where the trial judge is called upon to settle a controversial point of law. In those cases, cursory reasons may obscure potential legal errors and not permit an appellate court to follow the trial judge’s chain of reasoning: Sheppard, at para. 40, citing R. v. McMaster, 1996 CanLII 234 (SCC),  1 S.C.R. 740, at paras. 25-27. While trial judges do not need to provide detailed maps for well-trod paths, more is required when they are called upon to chart new territory. However, if the legal basis of the decision can nonetheless be discerned from the record, in the context of the live issues at trial, then the reasons will be legally sufficient.
 Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.
 In three recent appeals as of right, this Court reinstated sexual assault convictions that were set aside on appeal, endorsing the reasons of a dissenting justice.
 In R. v. Langan, 2020 SCC 33, rev’g 2019 BCCA 467, 383 C.C.C. (3d) 516, this Court adopted the dissenting reasons of Bauman C.J.B.C. that held that the trial judge’s ambiguous use of certain text messages did not demonstrate error on a functional and contextual reading. Bauman C.J.B.C. concluded that since there was a permissible basis on which to admit the text messages, “we should not speculate that the properly admitted evidence was improperly used, without clear indications to the contrary”: Langan (C.A.), at para. 103; see also para. 140.
 To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review: Sheppard, at para. 54. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2,  1 S.C.R. 5, at paras. 10-12, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 523-25. It is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated: Sheppard, at para. 46. An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous — the appeal court must determine the extent and significance of the ambiguity.
 In R. v. Kishayinew, 2020 SCC 34, rev’g 2019 SKCA 127, 382 C.C.C. (3d) 560, and R. v. Slatter, 2020 SCC 36, rev’g 2019 ONCA 807, 148 O.R. (3d) 81, this Court adopted the reasons of a dissenting judge holding that the trial judge did not err in conflating credibility and reliability. In both cases, the trial judges accepted the complainants’ evidence and found them to be credible, even if their reliability findings were not explicit on the face of the reasons.
 As Slatter demonstrates, a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. A trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: Vuradin, at para. 16. Often, the term “credibility” is used in this broader sense to mean the believability of the evidence and it necessarily includes both truthfulness and accuracy: McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 3, at pp. 30‑1 and 30‑2. For example, Black’s Law Dictionary (11th ed. 2019), at p. 463, defines credibility as “[t]he quality that makes something (as a witness or some evidence) worthy of belief” and model jury instructions include both truthfulness and accuracy within “credibility” assessments: G. A. Ferguson and M. R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose‑leaf)). Provided trial judges turn their mind to these considerations, there is no requirement that they utter the word “reliable”.