Simon's Megalomaniacal Legal Resources

Criminal - Reasons for Decision (2)

. R. v. Berg [reasons/JJRD/credibility]

In R. v. Berg (SCC, 2026) the Supreme Court of Canada considered the leading JJRD case regarding the adequacy of reasons for decision, and it's interaction with both credibility and reasonable doubt [as in WD] - this in a sexual assault context:

[3] The trial judge rejected Mr. Berg’s account. He noted that he had no reason to reject Mr. Berg’s testimony when considered in isolation. Nevertheless, he went on to state: “I reject Mr. Berg’s account because I accept [the complainant’s] testimony” (A.R., vol. II, at p. 157). This statement would become the subject of much of the debate on appeal and, standing alone, would be problematic. Yet, a functional reading of the trial judge’s reasons clearly shows that he did not engage in a credibility contest by dismissing Mr. Berg’s testimony solely because he preferred that of the complainant. Instead, the trial judge analysed Mr. Berg’s account based on the totality of the evidence, alongside the complainant’s credible testimony and the corroborating circumstantial evidence, and only then was satisfied of Mr. Berg’s guilt beyond a reasonable doubt.

....

[6] We write to provide guidance on, and correct potential errors that may arise from, the application of the principles flowing from the Court of Appeal for Ontario’s decision in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37. Reliance on J.J.R.D. has become commonplace for trial judges faced with conflicting testimonial accounts. It is often used to resolve situations where neither of two different testimonial accounts contain any frailties standing alone.

[7] J.J.R.D. involved a claim of insufficiency of reasons. In that case, the trial judge convicted the accused, even though his testimony had no obvious flaws standing alone, because the complainant’s testimony and the circumstantial evidence were sufficiently compelling to reject his account. On appeal, Doherty J.A. explained that the trial judge’s line of reasoning was adequate and permitted effective appellate review. In a now oft-cited passage, at para. 53, he observed:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[8] The trial judge in this case drew on this passage in structuring his W. (D.) analysis and rejecting Mr. Berg’s testimony (R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742). The dissenting justice at the Court of Appeal held that the trial judge failed to abide by J.J.R.D. and erred by rejecting Mr. Berg’s testimony without a “considered and reasoned acceptance” of the complainant’s evidence.

[9] As a general rule, trial judges should not rely on J.J.R.D. when structuring their W. (D.) analyses or when providing W. (D.) directions to a jury. J.J.R.D. is a case about appellate review for sufficiency of reasons and it does not purport to set out a formula for performing a W. (D.) analysis. It was intended to apply to appellate review of trial decisions when assessing whether the trial judge’s reasons were sufficient to permit appellate review, not to be applied by trial judges themselves. We agree with Paciocco J.A. in R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at para. 32, when he observed:

.... D. (J.J.R.) was a sufficiency of reasons case. It was not a jury instruction case, nor even a case about the content of the W. (D.) formula. The issue was whether the reasons given by a trial judge, sitting alone, were sufficient to permit effective appellate review: see D. (J.J.R.), at paras. 1-2. That is why Doherty J.A. describes “a considered and reasoned acceptance . . . of the truth of conflicting credible evidence” as an “explanation for the rejection of an accused’s evidence”. The case is about whether the trial judge explained the conviction by offering a considered and reasoned basis . . . . It does not purport to offer a formula for overcoming facially unassailable exculpatory evidence. [Emphasis deleted.]

[10] When invoked in a trial setting, J.J.R.D. may mislead the trier of fact to think that they may reject the accused’s account solely based on a “considered and reasoned” acceptance of the complainant’s testimony.[1] This raises the spectre of turning trials into credibility contests — the very error W. (D.) was designed to prevent. The presumption of innocence means that a guilty verdict cannot rest only on whether the trier of fact believes the Crown’s evidence or finds it more plausible (W. (D.), at p. 757; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9).

[11] Instead, a conviction must always rest on proof beyond a reasonable doubt. And proof beyond a reasonable doubt demands more than a “considered and reasoned acceptance” of the complainant’s evidence. Indeed, in J.J.R.D., Doherty J.A. was characteristically careful in his formulation: a trial judge can reject an accused’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” (para. 53 (emphasis added)). Read in full, this passage maintains that appellate courts should ensure that trial judges have considered the conflicting evidence — whether it is only the complainant’s testimony or also includes circumstantial evidence — and explained why it meets the high standard of proof beyond a reasonable doubt. It is not, by contrast, an invitation for trial judges to enter convictions solely based on a “considered and reasoned” acceptance of a complainant’s testimony.

[12] In this case, the trial judge did not use J.J.R.D. to resolve a credibility contest, and therefore made no legal error. However, caution is warranted to ensure that J.J.R.D. is not invoked in a manner that short-circuits W. (D.). Accordingly, the appeal is dismissed.

. R. v. Saddleback

In R. v. Saddleback (SCC, 2026) the Supreme Court of Canada considers the adequacy of criminal reasons for decision, here where the issue was the explaining of a key legal decision which was necessary for appellate review:

C. The Trial Judge’s Reasons Are Insufficient to Justify Reliance on the Out-of-Court Statement

[38] This is not to exclude the possibility that some use could still have been made of the statement, either because the presumption of inadmissibility was rebutted by a hearsay exception or because the statement had some other non-hearsay use that is not obvious from the reasons. Nor does this exclude the possibility that the trial judge could have reached the same conclusion about the timing of the group’s departure on other evidence.

[39] The Crown does not take the position that the trial judge’s reasoning reflects either of these possibilities. Rather, “the Crown chose to ride the horse that this was not hearsay” for the reason I have considered and rejected above (transcript, at p. 9). In particular, whether the statement could be admitted based on a hearsay exception was not argued before this Court or before the Court of Appeal. The Crown argues, relying on this Court’s decision in G.F., at paras. 78-79, that without clear indication to the contrary it should be presumed that the trial judge’s reliance on the statement was proper. In other words, mere ambiguity in the reasons is not enough to warrant appellate intervention (A.F., at paras. 79-80).

[40] I have concluded that the trial judge’s reasons indicate unambiguously that he relied on the out-of-court statement to establish the truth of its contents. The Crown advances no theory on which the hearsay use could be justified. But even assuming, in the alternative, that the trial judge relied on the statement because he felt it was admissible based on a hearsay exception or because he found the statement had an idiosyncratic or novel non-hearsay use, the chain of reasoning supporting that reliance would still have had to have been perceptible, reading his reasons in context. This is not the case here. These hypothetical paths of reasoning are completely unstated and cannot be intelligibly reconstructed from the record. Appellate review on the issues raised by these paths would not be possible and the Crown’s reliance on G.F. is accordingly misplaced.

[41] In short, even if the trial judge had used the statement in a legally permissible way, his reasons do not explain what that hearsay exception or non-hearsay use was and why it was justified, and the answers to these questions are not clear in the record. This problem would be particularly serious because, as I have explained, reliance on the statement went to timing, which was central to the trial judge’s reasons for finding Mr. Saddleback was the one who killed Mr. Dennehy.

[42] I note parenthetically that the entirety of the oral reasons for finding Mr. Saddleback guilty of second degree murder fit on just over four transcribed pages of the record. The sufficiency of reasons must always be assessed functionally and contextually (see G.F., at para. 69). However, reasons this short in a murder case involving multiple forensic experts, and inconsistent witness testimony found not to be generally reliable on points of detail, are difficult to square with the goals of ensuring transparency in the adjudicative process and of satisfying observers that justice has been done (see para. 68).

[43] In conclusion, on their face, the reasons purport to rely on an out-of-court statement for the truth of its contents. Even if the trial judge could have justified his reliance on the out-of-court statement, the reasons are insufficient for that purpose on this record.

. R. v. T.B.

In R. v. T.B. (Ont CA, 2026) the Ontario Court of Appeal considers insufficient reasons for decision, here in a criminal context:

[25] The threshold for appellate intervention based on an allegation of insufficient reasons is high: R. v. Kirkham, 2013 ONCA 437, at para. 3. Reasons are not to be parsed line by line in search of error, but read as a whole, in the context of the evidence, the issues, and the arguments at trial: G.F., at para. 20; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 13; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. Not every finding or conclusion need be set out. When reviewing oral judgments, appellate judges must “read between the lines, not ignore the implicit, strive to recognize the underlying meaning of first instance judgments” while refraining from speculation: R. v. Ouellet, 2025 QCCA 347, 452 C.C.C. (3d) 497, at paras. 16-22, aff’d 2025 SCC 40, 509 D.L.R. (4th) 50.

. R v. K.L.

In R v. K.L. (Ont CA, 2026) the Ontario Court of Appeal considers the adequacy of reasons for decision, here in a criminal context:

[21] Ultimately, the court is to take a functional and contextual approach in reviewing a trial judge’s reasons: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69. The Supreme Court has instructed that appellate courts are not to “finely parse” trial decisions searching for errors; rather, “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”: G.F., at para. 69. Reviewing the trial judge’s reasons in this light discloses no error.