Appeal-Judicial Review - Reasons - R v Sheppard (SCC, 2002). R v Sheppard
In R v Sheppard (SCC, 2002) the Supreme Court of Canada reviewed the law of providing reasons, here in a criminal case - but the logic applies to civil cases as well:
15 Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. 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.
16 In some common law jurisdictions, including England and Australia, the courts have adopted a general, albeit qualified, requirement in both civil and criminal cases to give reasons subject to significant exceptions: see generally H.L. Ho, “The judicial duty to give reasons” (2000), 20 Legal Stud. 42; Coleman v. Dunlop Ltd.,  P.I.Q.R. 398 (Eng. C.A.), at p. 403; and Flannery v. Halifax Estate Agencies Ltd.,  1 All E.R. 373 (C.A.). It is not clear, however, the extent to which a reasonable result based on a solid evidentiary record will nevertheless be reversed and sent back for retrial because the reasons for the decision are considered inadequate, confusing, or poorly expressed. In most of the reported cases, the deficiency in the reasons created significant problems of substance for the appellate court.
17 In Australia, it has been said by one state appellate court that it is as much a judicial duty “to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness”: Pettitt v. Dunkley,  1 N.S.W.L.R. 376 (C.A.), at pp. 387-88. The issue is not only to define the “appropriate case” but to define circumstances in which failure to provide adequate reasons will constitute grounds for an acquittal or a new trial.
18 In Canadian administrative law, this Court held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 S.C.R. 817, at para. 43, that:
. . . it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required.19 There are, of course, significant differences between the criminal courts and administrative tribunals. Each adjudicative setting drives its own requirements. If the context is different, the rules may not necessarily be the same. These reasons are directed to the criminal justice context.
20 Even in the criminal law context, Parliament has intervened to require the giving of reasons in specific circumstances. Section 276.2(3) of the Criminal Code requires trial judges to give reasons for their determination of the admissibility of a complainant’s prior sexual history. All the factors affecting the decision must be referred to as well as the manner in which the proposed evidence is considered to be relevant. In the same way, s. 278.8(1) states that trial judges shall provide reasons for ordering or refusing to order the production of certain records that contain personal private information. Section 726.2 provides that when imposing a sentence the court shall state the reasons for it. The only discernable purpose for these provisions is to facilitate appellate review of the correctness of the conviction or acquittal or sentence. It would be strange to impose a more rigorous standard of judicial articulation on an evidentiary ruling or sentence than on the conviction whose correctness is equally before the appellate court for review.
21 The task is 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.
22 There is a general sense in which a duty to give reasons may be said to be owed to the public rather than to the parties to a specific proceeding. Through reasoned decisions, members of the general public become aware of rules of conduct applicable to their future activities. An awareness of the reasons for a rule often helps define its scope for those trying to comply with it. The development of the common law proceeds largely by reasoned analogy from established precedents to new situations. Few would argue, however, that failure to discharge this jurisprudential function necessarily gives rise to appellate intervention. New trials are ordered to address the potential need for correction of the outcome of a particular case. Poor reasons may coincide with a just result. Serious remedies such as a new trial require serious justification.
23 On a more specific level, within the confines of a particular case, it is widely recognized that having to give reasons itself concentrates the judicial mind on the difficulties that are presented (R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356; R. v. N. (P.L.F.) (1999), 1999 CanLII 18637 (MB CA), 138 C.C.C. (3d) 49 (Man. C.A.), at pp. 53-56 and 61-63; R. v. Hache (1999), 1999 CanLII 18560 (NS CA), 25 C.R. (5th) 127 (N.S.C.A.), at pp. 135-39; R. v. Graves (2000), 189 N.S.R. (2d) 281, 2000 NSCA 150, at paras. 19-23; R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at pp. 67-68). The absence of reasons, however, does not necessarily indicate an absence of such concentration. We are speaking here of the articulation of the reasons rather than of the reasoning process itself. The challenge for appellate courts is to ensure that the latter has occurred despite the absence, or inadequacy, of the former.
A) Functional Test
24 In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
25 The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That provision limits the power of the appellate court to intervene to situations where it is of the opinion that (i) the verdict is unreasonable, (ii) the judgment is vitiated by an error of law and it cannot be said that no substantial wrong or miscarriage of justice has occurred, or (iii) on any ground where there has been a miscarriage of justice.
26 The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.
27 Reasons for decision may be examined in other contexts for other purposes. The Canadian Judicial Council, for example, regularly reviews reasons for judgment in response to complaints. Its criteria will be apt for its purpose and will obviously differ from the criteria applicable in the appellate context: see, e.g., Canadian Judicial Council, Report to the Canadian Judicial Council of the Inquiry Committee [in the case of Donald Marshall Jr.] Established Pursuant to Subsection 63(1) of the Judges Act at the Request of the Attorney General of Nova Scotia (August 1990). My focus in this case, to reiterate, is appellate intervention in a criminal case.
28 It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. 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.
29 I believe this rather pragmatic approach is signalled, if not always explicitly, in earlier decisions of this Court. A convenient starting point is the judgment of Laskin C.J. in Macdonald v. The Queen, 1976 CanLII 140 (SCC),  2 S.C.R. 665. In the course of dealing with an appeal from a court martial, he expressed concern that imposing a general duty on judges to give reasons, especially in the busy criminal courts, would risk ending up with “a ritual formula” (p. 672) that would be of no real assistance to the parties or to a reviewing court. Nevertheless, he said, at p. 673:
It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equally unchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict. [Emphasis added.]30 Laskin C.J. was not addressing a case where silence alone was said to be the error. He insisted on a “rational basis” in the record to justify appellate intervention.
31 The point was picked up and elaborated by Estey J. in Harper v. The Queen, 1982 CanLII 11 (SCC),  1 S.C.R. 2, a case involving the conviction of a police officer for assault of an individual in the course of an arrest. The appeal was based on an alleged error of law (p. 23). The Court was confronted with skeletal reasons in the context of an unsatisfactory record and concluded that the trial judge had “fatally overlooked” (p. 16) relevant defence evidence. Estey J. said, at p. 14:
Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. [Emphasis added.]If the trial judge provides some reasons, and therein demonstrates that he or she has failed to grasp an important point or has disregarded it, then as McLachlin J. (as she then was) pointed out in R. v. Burns, 1994 CanLII 127 (SCC),  1 S.C.R. 656, this may also lead “to the conclusion that the verdict was not one which the trier of fact could reasonably have reached” (p. 665).
32 The more problematic situation is where the trial judge renders a decision and gives either no reasons or, as in this case, “generic” reasons that could apply with equal facility to almost any criminal case. The complaint is not that the reasoning is defective but that it is unknown or unclear. In this respect, McLachlin J. stated as follows on behalf of the full Court in Burns, supra, at p. 664:
Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points [citations omitted]. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused’s guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict. 33 The appellant relies on this statement as establishing a simple rule that trial judges are under no duty to give reasons, but it seems to me, on the contrary, that this Court did expect trial judges to state more than the result. McLachlin J. anticipated at least “their conclusions” on the main issues (though perhaps not “collateral” issues) at least “in brief compass”. Further, as pointed out by O’Neill J.A. in the court below, the observations in Burns were substantially qualified by the use of the words “all”, “general”, “merely”, “all aspects”, “in itself”, “every aspect”, “in brief compass”, and “collateral aspects”. What was said in Burns, it seems to me, was that the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. 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.
This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. [Emphasis added.]