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Reasons - Explaining Law. R. v. J.E. [presumption that court knows the law]
In R. v. J.E. (Ont CA, 2024) the Ontario Court of Appeal comment on the adage that 'the court knows the law' as an aspect of inadequate reasoning doctrine:[31] First, the presumption that trial judges know the law only goes so far. As this court recently observed in R. v. Morin, 2024 ONCA 562, at para. 41:Although trial judges are presumed to know the law, this presumption does not entitle appellate courts to ignore what trial judges actually say in their reasons. A corollary of the judicial duty to give reasons is that when reasons are given, they should generally be taken seriously and at face value, as an accurate reflection of their author’s thought processes. It is difficult to dismiss the trial judge’s repeated statements in his reasons that he was rejecting A.R.’s evidence because he had a doubt about her credibility as a mere slip of the tongue. . Wheeler (Re)
In Wheeler (Re) (Ont CA, 2024) the Ontario Court of Appeal allowed an NCR appeal - here where the issues were those of "significant threat to the safety of the public", and the legal adequacy of the ORB's reasons for decision:[6] Under s. 672.54(a) of the Criminal Code, R.S.C. 1985, c. C-46, the Board was obliged to consider whether discharging the appellant absolutely would present a “significant threat to the safety of the public”. As Doherty J.A. explained in R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8:The meaning of the phrase “significant threat to the safety of the public” has been authoritatively set down in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 49-62, 69. The phrase refers to a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. A very small risk of even grave harm will not suffice. A high risk of relatively trivial harm will also not meet the substantial harm standard. While the conduct must be criminal in nature, not all criminal conduct will suffice to establish a substantial risk. There must be a risk that the NCR accused will commit a “serious criminal offence”. Doherty J.A. explained further, at para. 3, that:Unless the Review Board could be satisfied that the appellant’s conduct would pose that threat, the Review Board was obliged to absolutely discharge the appellant regardless of the negative effect that order might have on both the appellant’s ability to function in society and health care professionals’ ability to treat the appellant. [7] The foreseeable risk of harm to the public cannot be based upon mere speculation, but must be rooted in evidence that satisfies the Board that the appellant is not an appropriate candidate for an absolute discharge: Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at paras. 16-17.
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[12] What the Board’s reasons do not adequately explain is how it concluded that the legal test for continuing the appellant’s detention was met. We are unable to discern from the Board’s reasons how it concluded, on the evidence as a whole, that the appellant’s continued use of cannabis would create a substantial risk of serious harm to the public.
[13] The Board recognized that the evidence showed that the appellant has been using cannabis regularly for years, including for much of the eight years he has been in the ORB system, and that his consumption appears to be increasing. However, the Board also recognized that the appellant “has good insight into his mental illness and the need for medication”, and that the evidence was that for the past eight years he “has always been adherent to his medication.” Apart from the index offences, which were committed over a few weeks in the summer of 2016, the appellant has no history of violence other than a dated conviction for common assault in 2006, when he was 20 years old. Members of the appellant’s treatment team have observed “mental status changes” that they attribute to his cannabis use, and which Dr. Naidoo interpreted “as potential signs of [his] schizoaffective disorder flaring up”. However, the appellant has not made any threats or exhibited any violent behaviour, other than a single incident in the summer of 2021 when he threatened his older brother during an argument about his increased substance use. His treatment team noted that the appellant had “experienced significant stress during the summer months” due to the unexpected death of his younger brother, followed by the death of his mother, and he was voluntarily readmitted to hospital shortly after this incident.
[14] The Board recognized that the appellant “has not engaged in any violence or deteriorated to the point of actually threatening the safety of the public in the past years”, but concluded that this was only “because of the intervention of the treatment team when he has been using cannabis.” The Board appears to have concluded further that the appellant’s detention will remain necessary until he “gain[s] insight into the negative impacts of cannabis use on him to the point that he will be able to remain abstinent once returned to the community.” However, the Board’s reasons do not show that it properly considered whether the final step in Dr. Naidoo’s cascading risk scenario was supportable on the evidence as a whole.
[15] Dr. Naidoo initially testified that he believed the appellant’s cannabis use would have caused his mental condition to worsen to the point of his acting violently but for the treatment team’s intervention. However, he later explained that his concern about the appellant being granted an absolute discharge was that the appellant would “fall through the cracks” and become “unable to get medication.” Dr. Naidoo does not seem to have squarely addressed what would happen if the appellant continued to use cannabis but also kept taking his prescribed medication, as he had done despite his regular cannabis use since 2020, and which he had not been doing when he committed the index offences.
[16] It may be that the appellant’s continued use of cannabis will exacerbate the symptoms of his mental illness. However, the question the Board had to consider was whether this presented a foreseeable and substantial risk of physical or psychological harm to members of the public, based on a scenario in which the appellant committed serious criminal conduct resulting in harm that is “serious and beyond the trivial or annoying”: Ferguson, at para. 8. We are unable to discern from the Board’s reasons how the Board concluded that this test was met. . Mud Engineering Inc. v. Secure Energy Services Inc.
In Mud Engineering Inc. v. Secure Energy Services Inc. (Fed CA, 2024) the Federal Court of Appeal considers the degree of legal authority required when facing an 'inadequate reasoning' appeal:[34] First, in the companion appeal, the appellants challenge the Federal Court’s order because it was "“brief…without reasons”". In particular, the appellants submit that the Federal Court did not set out the legal test for settlement privilege and so its reasons are legally insufficient.
[35] I disagree. In three-and-a-half pages of single spaced reasons set out in its order, the Federal Court met the legal standard for sufficiency of reasons: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 55. The non-mention of some evidence in the reasons does not mean that the court ignored that evidence; to the contrary, there is a presumption that in reaching its decision the first-instance court considered all of the evidence before it: Housen at para. 46; Manitoba v. Canada, 2015 FCA 57, 470 N.R. 187 at para. 26.
[36] It is true that the Federal Court did not explicitly set out the test for settlement privilege. However, it did state that it drew upon the respondents’ written submissions. In their written submissions, the respondents cited a leading Supreme Court authority on point, Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, that sets out the relevant principles on settlement privilege. Reasons are to be read not literally with a dictionary in our hand, but holistically in light of the record before the Court, including the submissions and authorities put to the Court: Housen and Manitoba, above. This Court can discern the basis upon which the Federal Court decided the settlement privilege issue. The Federal Court’s reasons were adequate. . Geddes v. Chief Animal Welfare Inspector
In Geddes v. Chief Animal Welfare Inspector (Div Court, 2024) the Divisional Court dismisses a JR against the Animal Care Review Board (ACRB) under the PAWS animal welfare regime. The ACRB decisions confirmed orders that "certain animals— which had been removed from the Applicant’s property by Animal Welfare Services (“AWS”) — should not be returned to the Applicant. The Board also confirmed seven Statements of Account (“SOA”), payable by the Applicant in the total amount of $105,059.35."
The court comments on an argument that the tribunal failed to considered cases advanced by the appellant:The Board’s alleged failure to consider the Applicant’s case law
[46] The Applicant submits that in its Initial Decision the Board failed to refer to any of the cases put forth by the Applicant. He submits that the rules of natural justice and procedural fairness dictate that the Board consider the cases put forth by the Applicant and reference them in its decision. The Applicant submits that, although in its Reconsideration Decision, the Board states its conclusion that the cases relied upon by the Applicant are distinguishable or irrelevant, it does not explain how or why it reached that conclusion, thereby depriving the Applicant of “the primary mechanism by which decision makers demonstrate that they have actually listened to the parties”: Vavilov, at para. 127.
[47] We do not accept those submissions. As Vavilov makes clear, at para. 92, a reviewing court is not to expect administrative decisions to read like court decisions.
[48] First, there is no requirement on a tribunal to make reference to every case referenced by a party. Absent a submission that a particular case calls into question the reasonableness of the decisions at issue, it is not a reviewable error not to deal with caselaw. In any event, the Board did, in fact, make specific reference to cases raised by the Applicant, explaining why they were not applicable: see Reconsideration Decision, at paras. 22-37. The Applicant conceded that in assessing the reasonableness of the Board’s decisions we could consider the reasoning in both decisions to determine if together they demonstrated the hallmarks of reasonableness.
[49] In our view the Board provided adequate reasons for its conclusions concerning the applicability and relevance of the case law referenced by the parties and we find no breach of procedural fairness or lack of natural justice in the Board’s determinations and treatment of the case law it was asked to consider. . LeGrand v. LeGrand
In LeGrand v. LeGrand (Div Court, 2023) the Divisional Court considered a judge's duty to cite law (or not) in their reasons for decision:The Criminal Standard of Proof and the Presumption of Innocence Were Applied
[33] The motion judge is taken to know the law. In this case, the record established an overwhelming case against the father. He was given a chance to remedy his breaches of the consent orders. He did not. His sole defence was that he bore no responsibility for their daughters’ refusal to resume living with their mother or to return to their previous school. This defence was rejected by the motion judge. A motion judge need not explicitly set out the burden of proof or the presumption of innocence for her decision to withstand appellate scrutiny so long as it is clear on the record that she was alive to and applied the law and had a sufficient evidentiary basis for her conclusions.
[34] The fact that the motion judge did not explicitly set out an analysis regarding the burden of proof is not a basis for an appellate court to intervene. As set out in 2363523 Ontario Inc. v. Nowack 2016 ONCA 951, at para 26, a judge is not required to expressly set out the test in his or her reasons. Here, it is abundantly clear that Justice Hughes had informed herself of the relevant principles and was well aware of the tests to be applied when making a finding of contempt. It was also clear what steps were required for the father to purge his contempt. . Hackman v. TSCC No. 1978
In Hackman v. TSCC No. 1978 (Div Court, 2023) the Divisional Court considered an appeal from a decision of the Condominium Appeal Tribunal (CAT). In these quotes the court considers an argument of 'inadequate reasons', here an allegation that the CAT failed to explain a jurisdictional issue [relating to CA s.117]:[6] Mr. Hackman has brought this appeal of the CAT decision under s. 1.46 of the Act, which permits appeals on questions of law. Otherwise, an order of the Tribunal is final and binding. ...
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1. Adequacy of reasons given
[8] The substance of Mr. Hackman’s appeal on the adequacy of reasons given by Mr. Cook concerns his defence to the claim that he breached the settlement agreement to live by the declaration, by-laws and rules of the corporation. What Mr. Hackman has done is in effect mounted a classic strategy of using an offence to defend that claim. In that offence, he alleged that TSCC No. 1978 and its directors caused him psychological harm by sending him notices, contrary to the rules against the corporation behaving in a rude or aggressive manner. Mr. Hackman submits that the CAT did not deal with this part of his defence or give adequate reasons for not doing so, giving rise to a question of law.
[9] The Tribunal did not err in concluding that it did not have jurisdiction to deal with Mr. Hackman’s complaints of harassment resulting in psychological injury. Section 1 of O. Reg. 179/17 defines the scope of disputes over which the CAT has jurisdiction. Pursuant to s. 1(1)(c.1) of the Regulation, the CAT has jurisdiction over a dispute with respect to s. 117(2) of the Act. However, under s. 1.36(4) of the Act, the CAT does not have jurisdiction over a dispute with respect to s. 117(1).
[10] On appeal, the Appellant submits that the CAT failed to give adequate reasons for declining to exercise its jurisdiction under s. 117(2) of the Act. However, it is clear the appellant relied on s. 117(1) when arguing before the CAT as opposed to s. 117(2). In the Appellant’s written submissions to the CAT, he stated that s. 117 prohibits any person from causing injury to persons or property of the corporation. Only subsection (1) refers to injury; subsection (2) does not. As a result, the Appellant did not specifically put forward s. 117(2) as a basis for the CAT to exercise jurisdiction over his complaints about harassment.
[11] The modern basis to consider the absence or insufficiency of reasons for a ruling or verdict as an error of law is found in R. v. Sheppard, 2002 SCC 26 and has been followed consistently by the appellate courts ever since. In R. v. R.E.M., 2008 SCC 51, the Supreme Court explained that reasons given by a court in Canada must enable the courts to perform the functions that reasons are expected to serve. This includes the sufficiency of reasons to explain the basis for the decision made, and to allow for meaningful appellate review. At that level, deficiencies of reasons can amount to an error of law: R. v. J.C., 2023 ONCA 101, at paras. 4 and 5. An appeal arises from the judgment itself, not the reasons given for the judgment rendered.
[12] There was no need for Mr. Cook to go further in his reasons than to identify that the CAT has no jurisdiction to hear complaints under s. 117(1) of the Act. The sufficiency of the reasons is measured by the succinctness of the correctness of his legal conclusion. That succinct conclusion is enough to provide the basis for the decision made, and to permit appellate review, as it has here. . R. v. Bakal
In R. v. Bakal (Ont CA, 2023) the Court of Appeal commented on when a judge need not cite precedent:[26] I disagree. An experienced trial judge like this one is presumed to be conversant with legal principles routinely applied which include the W.(D.) principles and their application. The court is not obliged to self-instruct on those principles: R. v. Daguio, 2018 ONSC 1510 at para. 11.
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