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Reasons - After-the-Fact Justification. R. v. Qita
In R. v. Qita (Ont CA, 2026) the Ontario Court of Appeal allowed the defendants' appeal, here brought against convictions for 10 "counts under the Immigration and Refugee Protection Act", here where the appeal was grounded in "the trial judge’s long delay in delivering her written reasons for judgment".
Here the court considers an admixture of (1) late reasons for decision [only peripherally regarding Charter s.11(b)], (2) the concern over 'after-the-fact' justification when they are drafted, and (3) the judicial presumption of integrity:[3] The appellants appeal their convictions based on the trial judge’s long delay in delivering her written reasons for judgment. They submit that this delay gives rise to a reasonable apprehension that the trial judge’s written reasons were an after-the-fact justification of her bottom-line decision to find the appellants guilty. Mr. Qita also appeals his sentence.
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D. Analysis
[31] At the heart of this appeal is the integrity of the trial judge’s reasons. There is a strong presumption that the reasons of trial judges reflect the actual reasoning that led to the verdict, not an after-the-fact justification of a decision previously made: R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at para. 19.
[32] The presumption of judicial integrity is intimately connected to the presumption of impartiality on the part of Canadian judges, a presumption that is not easily displaced: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. Edwards, 2024 SCC 15, 436 C.C.C. (3d) 1, at para. 84; and R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 32, 117.
[33] The presumption of integrity arises when there is a delay between the pronouncement of the verdict and the subsequent release of reasons for that verdict. This scenario raises concerns that the reasons are not a true account of the reasons that led the judge to announce their verdict.
[34] Bottom-line verdicts (sometimes referred to as “bare verdicts”), whereby verdicts are announced with the promise of reasons to follow, seem to occur with increasing frequency in our criminal courts. This may be the product of the mounting caseloads that trial judges must shoulder, especially in busy jurisdictions such as the one in which this trial was conducted.
[35] In the leading case of Teskey, at para. 16, Charron J. said: “[a] judge is not precluded from announcing a verdict with ‘reasons to follow’” (emphasis added). But she signalled limitations on this practice, at para. 17:For example, it is often necessary in the interests of achieving trial efficiency for a trial judge to announce promptly the disposition on an evidentiary ruling or on a Charter motion, with reasons to follow at a later date. In particular circumstances, there may also be good reason for announcing the verdict in a criminal case prior to delivering the reasons that led to it. For example, the prompt delivery of a verdict of acquittal may allow an accused to be immediately released from custody. Or it may be desirable to announce a verdict of guilty at the conclusion of the hearing so as to secure an earlier date in the court’s schedule for the subsequent sentence proceedings. However, in all cases, a trial judge should be mindful of the importance that justice not only be done but that it appear to be done. [Italics in original; underlining added.] [36] The last point underscored in this passage transcends the presumption of integrity and engages an equally fundamental principle. An accused person is entitled to know in a timely manner not just that they have been found guilty, but also why. Witnesses, whether complainants or otherwise, along with the community at large, are also entitled to know why such a serious decision in a criminal case has been reached. The appearance of justice suffers when this delay is unduly lengthy.
[37] When there is a long delay between the verdict and the reasons, it may cause a reasonable person to apprehend that the judge has engaged in result-driven reasoning, even subconsciously, to defend the verdict rather than explain how it was actually reached: Teskey, at para. 18. In these circumstances, having committed to a particular result, the trial judge may feel that they are unable to keep an open mind in their review of the evidence. As Charron J. said in Teskey, at para. 18: “A reasonable doubt is not always obvious. Its presence may be far more subtle and only discernible through the eyes of the person who keeps an open mind.”
[38] In R. v. Khawaja, 2026 ONCA 304, my colleague Favreau J.A. addressed the relevant principles to be considered in determining whether the presumption of integrity is rebutted. Referring to Teskey, she wrote, at para. 34:This presumption of integrity applies even where the trial judge provides reasons after delivering a verdict, including after a lengthy delay between the verdict and the delivery of reasons. Delay in delivering reasons, on its own, will not rebut the presumption: Teskey, at para. 23; R. v. Artis, 2021 ONCA 862, 408 C.C.C. (3d) 133, at para. 18. However, the longer the delay between the verdict and the reasons for decision, “the greater the concern that the requisite link between the two does not exist”: [R. v. Cunningham, 2011 ONCA 543, 106 O.R. (3d) 641, at para. 37]; Artis, at para. 18. [39] I emphasize that, in determining whether the presumption of integrity has been rebutted, the focus is from the perspective of an informed and reasonable observer considering the totality of the circumstances: Teskey, at para. 21; R. v. Arnaout, 2015 ONCA 655, 127 O.R. (3d) 241, at para. 33, leave to appeal refused, [2016] S.C.C.A. No. 51. As Doherty J.A. wrote in Cunningham, at para. 35, this objective approach “avoids the impossible task of deciding whether a particular set of reasons in reality describes the actual reasoning path taken by a judge”.
[40] In Teskey, at para. 23, Charron J. identified a number of factors that caused her to conclude that the 11-month delay between the trial judge’s announcement of the verdicts and the release of reasons rebutted the presumption of integrity. For ease of subsequent reference, I have replaced the bullet points in the original text with numbers:(1) the trial judge’s obvious difficulty in arriving at a verdict in the months following the completion of the evidence;
(2) the absolutely bare declaration of guilt without any indication of the underlying reasoning;
(3) the trial judge’s expressed willingness to reconsider the verdicts immediately after their announcement;
(4) the nature of the evidence that called for a detailed consideration and analysis before any verdict could be reached;
(5) the failure of the trial judge to respond to repeated requests from counsel to give reasons;
(6) the contents of the reasons referring to events long after the announcement of the verdict suggesting that they were crafted post-decision;
(7) the inordinate delay in delivering the reasons coupled with the absence of any indication that his reasons were ready at any time during the 11 months that followed or that the trial judge had purposely deferred their issuance pending disposition of the dangerous offender application. As Favreau J.A. said in Khawaja, at para. 36, “this list of factors is not comprehensive. Other factors may be relevant depending on the circumstances of the case.”
[41] In this case, five of the seven Teskey factors are in play.[1] I also address two other factors that are unique to this case.
[42] On the first Teskey factor, the trial judge was obviously having difficulty in reaching verdicts following the completion of the evidence. When she delivered her bottom-line verdicts on March 11, 2022, the trial judge mentioned the “voluminous documentary evidence as well as the oral testimony of 10 witnesses, as well as Mr. Qita’s testimony.” The trial judge’s ruling on the s. 11(b) Charter application is also telling in this regard. While she noted that she was “confident” she had reached a “just verdict” by March 2022, she described her deliberations as a “daunting task and at times, a very overwhelming process.” This comment is a good indication that the trial judge found the case to be difficult. This is not meant as a criticism of the trial judge. It was a difficult case.
[43] On the second factor, when the trial judge announced her verdicts, in the words of Teskey, it was a “bare declaration of guilt without any indication of the underlying reasoning”: at para. 23. The Crown argues that we should consider the bottom-line verdicts against the backdrop of the very thorough reasons the trial judge provided in dismissing the motion for directed verdicts. The Crown submits that these reasons add important context to the ultimate verdicts reached by the trial judge. I do not accept this submission.
[44] The issue faced on a motion for directed verdict is very different from the ultimate verdict. The directed verdict decision merely requires an evaluation of whether there is any evidence upon which a trier of fact, properly instructed, could find the accused person guilty on a particular count: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at paras. 1-4. In making this determination, a trial judge must take the Crown’s case at its highest: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at paras. 7-8; and R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at para. 277. As this court said in R. v. Patterson, 2018 ONCA 774, at para. 11: “The Crown was not required to demonstrate that the inference sought was a likely or probable inference arising from the evidence, let alone that it was the only available inference. To leave the count with the jury, it was enough that it was a reasonable inference consistent with guilt” (emphasis in original).
[45] This is quite a different task than the ultimate determination at the end of the trial when the question is not whether a trier of fact could find the accused person guilty, but whether guilt has been proved beyond a reasonable doubt, based on all of the evidence adduced at trial. This, of course, includes defence evidence. In this case, evidence was called on behalf of both appellants which, by definition, was absent from the trial judge’s consideration when the directed verdict motion was argued at the end of the Crown’s case.
[46] The fourth factor – whether the nature of the evidence called for a detailed consideration and analysis before any verdict could be reached – was clearly present in this case. The length of delay after the end of submissions was lengthy, and it was also punctuated by adjournments driven by the trial judge. As the trial judge’s thorough reasons both on the directed verdict motion and in her final judgment demonstrate, the case was factually complex. It required a careful and detailed consideration of the evidence.
[47] On the fifth factor – the trial judge’s responsiveness to requests from counsel to give reasons – the trial judge was responsive at times, but not at others. Counsel made numerous requests for the trial judge to deliver her reasons in this case. The trial judge’s out-of-court responses, transmitted through court staff, were often apologetic. But only twice did the trial judge offer an explanation for her delay: once citing difficulties in sitting at a computer, and another time when she referred to an on-going criminal jury trial that was taking longer than she expected.
[48] On the seventh factor referenced in Teskey – whether there was an inordinate delay in delivering the reasons – I have already referenced the fact that the reasons were released over nine months after the trial judge announced her bottom-line verdicts, with minimal explanation of the cause for such delay.
[49] There are two further considerations, beyond the Teskey factors, that are relevant to this case. The first one is revealed in the trial judge’s reasons in which she dismissed the appellants’ post-verdict s. 11(b) Charter application. A contested issue was the time spent waiting for the trial judge to release her reasons, after her bare verdicts were delivered but before sentencing could take place. The appellants took the position that this period of time should be counted in the sentencing delay calculus because it was not “deliberation time” within the meaning of R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364. In other words, the appellants argued that deliberations ended when the bottom-line verdicts were rendered. The Crown submitted that this period was deliberation time, based on the premise that deliberation time includes time required to prepare reasons for decisions already announced. The trial judge accepted the Crown’s argument and counted the entire period of nine months and nine days, from the delivery of her bottom-line verdicts to the release of her written reasons, as deliberation time.
[50] I am not concerned with the correctness of the trial judge’s characterization of this period of time for the purposes of reviewing her decision on the s. 11(b) application. The focus is on how a reasonable observer would understand the trial judge’s description of her deliberation process as it relates to the presumption of integrity described in Teskey. As the trial judge said in her Charter ruling when explaining the reasons for her delay in releasing her written reasons, at paras. 57-58:The parties needed to know ‘what’ was decided and ‘why’ it was decided. On March 11, 2022, the parties and counsel knew what was decided. They needed the Reasons to understand why that decision had been made.
In my view, the time taken for the preparation and delivery of Reasons does form part of the deliberation time. I rely on K.G.K. in support of this finding as reviewed below. [Emphasis added.] [51] In K.G.K., the Supreme Court held that deliberation ought not to be included in the ceilings established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Moldaver J. said, at para. 24: “a different test is required in determining whether an accused person’s s. 11(b) rights have been infringed on account of verdict deliberation time” (emphasis added). There are many references in the Court’s decision to the expression “verdict deliberation time”, not simply “deliberation time”. The Court describes “verdict deliberation time” as “the time taken by a trial judge to deliberate and render a decision after the evidence and closing arguments at trial have been made”: K.G.K., at para. 2.
[52] The Court in K.G.K. acknowledged the conceptual connection between delay for post-trial s. 11(b) purposes on the one hand, and delay in the context of the presumption of integrity on the other. However, they are not the same thing. Moldaver J. said, at para. 65:Where an accused claims that the trial judge’s verdict deliberation time breached their s. 11(b) right to be tried within a reasonable time, they must establish that the deliberations took markedly longer than they reasonably should have in all of the circumstances. This is — appropriately, in my view — a high bar. As indicated, the presumption of judicial integrity operates in this context to create a presumption that the trial judge balanced the need for timeliness, trial fairness considerations, and the practical constraints they faced, and took only as much time as was reasonably necessary in the circumstances to render a just verdict. Only where the trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have will this presumption be displaced. [Italics in original; underlining added.] [53] Deliberation is the process by which a judge reasons to a conclusion – in a criminal case, a verdict. While reasons are meant to explain that process – i.e., how the verdict was reached – they are not part of it when a decision has already been made. If a judge continues to “deliberate” after a verdict has been rendered, the integrity of that decision becomes questionable, and the reasons justifying the announced decision are suspect.
[54] The trial judge did not merely slip in her use of the term “deliberation”. She was clear that she considered her deliberation time to include the post-verdict period when she was writing her reasons. This is a factor that, along with the five Teskey factors discussed above, would cause a reasonable person to apprehend that the trial judge’s written reasons were an after-the-fact justification of her bare verdicts delivered over nine months earlier.
[55] There is one further matter that requires consideration. At the hearing of the appeal, appellants’ counsel produced a document that, in colour-coded form, compared the reasons of the trial judge on the directed verdict motion with her final reasons for judgment. Both documents are lengthy. The directed verdict reasons are 91 pages (259 paragraphs) long and her final reasons are 105 pages (314 paragraphs) long.
[56] Without objection from the Crown about the relevance or accuracy of this document, the appellants have demonstrated that roughly 75% of the reasons for judgment are either exactly the same, or contain only very minor variations (e.g., re-wording, typo corrections). In fairness to the trial judge, the new parts of her analysis in her final reasons address principally the defence evidence.
[57] I do not mention this aspect of her reasons as a criticism of the trial judge’s work product. However, in her s. 11(b) Charter ruling, the trial judge emphasized the length of her reasons as partial explanation for the delay that unfolded. It would appear that a good portion of the reasons had already been written. There is nothing inherently wrong with this practice. But it goes to the lack of explanation for the delay, which is a circumstance that may constitute evidence to rebut the presumption of integrity: Khawaja, at para. 36. The appellants submit that this comparison supports their Teskey argument. Given that a significant portion of the reasons were already done, the delay persisted while the trial judge was drafting parts that specifically engaged with contested issues raised by the defence’s case. A reasonable observer would conclude that those were difficult paragraphs to write because the trial judge continued to deliberate on these issues post-verdict.
[58] Finally, the Crown submits that a relevant contextual factor in this case is the fallout from the COVID-19 pandemic. I agree with the appellants that there is no indication that the pandemic had any impact on what happened in this case.
[59] In conclusion, weighing the various factors from Teskey, and the other features of this case that I have identified, the appellants have met their high burden of displacing the presumption of integrity. I acknowledge that there is nothing specific in the trial judge’s reasons, something telling, that is indicative of a disconnect between the verdicts she reached and the reasons she provided. But that is not the test. The inquiry is an objective one, from the perspective of a reasonable and informed person. In this case, taken together, the factors I have identified would lead a reasonable person to apprehend that the reasons that were produced were an after-the-fact justification for a decision reached months earlier. As the appellants say in their factum:As spring turned to summer, summer to fall, and fall to winter, she repeatedly rescheduled appearances while she continued to write her reasons. This Court cannot be confident that during this time, the trial judge was merely recording the reasoning that had previously led to her decision. On this record, a reasonable person would view her reasons as a product of after-the-fact justification. [60] Accordingly, for the purposes of appellate review, the trial judge’s reasons for judgment cannot be relied upon. The case must stand or fall on the bottom-line decision announced on March 11, 2022. The Crown does not dispute that these reasons, standing alone, cannot sustain the convictions.
[61] To conclude, I am aware that a finding by an appellate court that the presumption of integrity has been rebutted strikes a harsh tone. The everyday use of the term “integrity” hints at a person’s character, not necessarily their work product. A more suitable label in this context might refer to the “authenticity” of a trial judge’s reasons. Consideration of whether the presumption of authenticity has been rebutted would train the focus squarely on the trial judge’s work. However, “integrity” has emerged as the term of choice in the jurisprudence.
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