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Reasons IV

. Morrison v. Canada

In Morrison v. Canada (Fed CA, 2021) the Federal Court of Appeal made the following comment on their duty to issue reasons for decision:
[16] Again, I disagree. It is well-settled law that a judge has no general duty to provide reasons for decision "“when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances”" (R. v. Sheppard, 2002 SCC 26 at para. 4, [2002] 1 S.C.R. 869, citing R. v. Barrett, 1995 CanLII 129 (SCC), [1995] 1 S.C.R. 752 at p. 753, 21 O.R. (3d) 736). Given the state of the evidentiary record before the Tax Court, the basis of the Court’s decision is plain and obvious.
. LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046

In LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046 (Ont CA, 2021) the Court of Appeal commented on the adequacy of reasons for decision:
[21] As for the appellant’s submissions that the application judge failed to make certain factual findings, she was not obliged to address every argument raised: Welton v. United Lands Corporation Limited, 2020 ONCA 322, 64 C.C.E.L. (4th) 265, at para. 60; Manastersky v. Royal Bank of Canada, 2019 ONCA 609, 146 O.R. (3d) 647, at para. 125; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 18. Most fundamentally, she considered the competing interests of the parties, recognized that the negotiations were ongoing, and found that as of the date of the hearing, the appellant had not established oppression under the Act. We would not give effect to this ground of appeal.
. R v E.B.

In R v E.B. (Ont CA, 2021) the Court of Appeal reviewed the adequacy of reasons for decision:
(1) Did the trial judge err by failing to provide adequate reasons?

[40] The failure of a trial judge to give adequate reasons, in the sense of reasons that permit appellate review, is an error of law. However, “[i]f 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 [appellate] intervention”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25, 28.

[41] The assessment of the adequacy of reasons is thus concerned with whether the reasons explain what was decided and why, not with the substantive correctness of the explanation provided. The requirement for adequate reasons is not an invitation for an appellate court to substitute its perceptions of what factual and credibility findings should have been made, nor does it provide a remedy for a party who, from the reasons, knows why the verdict was reached but is in “informed disagreement with the trial judge”: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 23; R. v. Braich, 2002 SCC 27, [2002] 1 SCR 903, at para. 21.

[42] Where a case turns on credibility, the reasons must show that the trial judge has “seized the substance of the issue” – whether the accused’s evidence, in the context of the evidence as a whole, left the judge with a reasonable doubt as to the accused’s guilt. The degree of detail that the trial judge is required to use when explaining their credibility findings in support of this ultimate question depends on the nature of the case and may vary with the evidentiary record: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 31, 50, and 51; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 23, 30. The fact that a trial judge’s reasons are “ambiguous” or “imperfect” is not sufficient to justify appellate intervention: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at paras. 76-79.

[43] The adequacy of the reasons must also be assessed in light of whether they convict or acquit. In Walker, at para. 2, Binnie J. explained:
[W]hile the trial judge's duty to give reasons applies generally to acquittals as much as to convictions, the content of the reasons necessary to give full effect to the right of appeal is governed by the different issues to which the reasons are directed on an acquittal (perhaps no more than the basis of a reasonable doubt) and a conviction (factual findings showing the pathway to conviction, explaining why significant elements of the evidence are accepted, rejected or fail to raise a reasonable doubt). Caution must be taken to avoid seizing on perceived deficiencies in a trial judge's reasons for acquittal to create a ground of "unreasonable acquittal" which is not open to the court under the provisions of the [Code].
. Focal Elements Ltd. v Alvand

In Focal Elements Ltd. v Alvand (Div Ct, 2021) the Divisional Court commented that when reasons for decision lack a relevant evidentiary factor it need not be fatal to a ruling:
[15] As the Supreme Court emphasized in Housen, failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence. An omission is only a material error if it gives rise to the reasoned belief that the trial judge ignored or misconceived the evidence in a way that affected the ultimate conclusion. Further, the weight to be assigned to various pieces of evidence is essentially the province of trier of fact.
. R. v G.C.

In R. v G.C. (Ont CA, 2021) the Court of Appeal commented on reasons for decision:
[10] In cases such as this, the Supreme Court of Canada has recently cautioned that appellate courts “must not finely parse the trial judge’s reasons in search for error”: R. v. G.F., 2021 SCC 20, at para. 69. The Court emphasized both the strong deference due to a trial judge’s credibility findings and the presumption that trial judges must be taken to know the law. The presumption applies with particular force when it comes to settled principles. As the Court said, at para. 75 of G.F., “trial judges do not need to provide detailed maps of well-trod paths”. The Court further observed, at paras. 76-79, that reasons which are “imperfect” or language which is “ambiguous” does not per se require allowing an appeal.
. Johnson v. Ontario

In Johnson v. Ontario (Ont CA, 2021) the Court of Appeal considered the relevance of 'colloquy' (verbal interchange) between a judge and counsel towards assessing the reasons for judgment:
[7] The motion judge gave detailed reasons for his decision refusing Mr. Parker’s request for an extension of time. Those reasons no doubt will be the focus of the panel’s attention. Absent a ground of appeal asserting procedural unfairness, what transpired during a hearing between the court and counsel usually plays little role on the determination of an appeal. As this court observed in R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 154 O.A.C. 51, (C.A.), at para 45, leave to appeal refused, [2002] S.C.C.A. No. 156:
[I]t is generally neither appropriate nor possible to draw inferences concerning a trial judge's reasons for a ruling based on colloquy with counsel. Trial judges routinely probe submissions to test the viability of various avenues of decision. Particularly where comprehensive reasons are given there is no basis for going behind a trial judge's reasons.
. R. v. R.C.

In R. v. R.C. (Ont CA, 2021) the Court of Appeal considered the extent to which inconsistencies must be addressed in reasons for decision:
[37] Trial judges are not required to address every inconsistency in the evidence of a witness. They are however obliged to explain how they resolve major inconsistencies. Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a “carelessness about the truth” while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 30-31.
. 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

[68] 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, [2002] 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.

[69] 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, [2006] 1 S.C.R. 621, at para. 19; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15; R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 10, 15 and 19; R. v. Villaroman, 2016 SCC 33, [2016] 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.

[70] 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.

[71] 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.

[72] 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]
[73] 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.

[74] 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), [1994] 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.

[75] 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), [1996] 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.

[76] 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.

[77] 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.

[78] 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.

[79] 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, [2008] 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.

[80] 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.

[81] 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.
[82] 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”.
. Durkacz v. FSD Pharma Inc.

In Durkacz v. FSD Pharma Inc. (Div Ct, 2021) the Divisional Court considered the adequacy of reasons below:
[14] Reasons serve three purposes:
As explained in R.E.M., a trial judge’s reasons serve three main functions — to explain the decision to the parties, to provide public accountability and to permit effective appellate review. These functions are fulfilled if the reasons for judgment explain the basis for the decision reached. The question is not whether a different verdict could have been reached on the evidence.

(R. v. H.S.B. 2008 SCC at para. 8)
[15] The absence of a specific finding in respect of any particular alleged wrong (in this case impropriety in the issuance of the shares to the directors) in the reason provided is not the test on which this, or any appeal, should be determined:
However, an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is a failure to give adequate reasons a free standing basis for appeal. At para. 20 of Walker, Binnie J. states:
Equally, however, Sheppard holds that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26).
[16] The paragraph goes on to explain what is required for reasons to be sufficient:
Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue. . . . The duty to give reasons “should be given a functional and purposeful interpretation” and the failure to live up to the duty does not provide “a free-standing right of appeal” or “in itself confe[r] entitlement to appellate intervention” (para. 53)

(F.H. v. McDougall, 2008 SCC 53 at para. 99 quoting R. v. Walker, 2008 SCC 34 at para. 20)
[17] Not every step in the progress to resolution needs to be explained for reasons to be sufficient:
Nor is the question whether the reasons detail every step of the reasoning process or refer to every piece of evidence or argument led by counsel. The task for the appellate court is simply to ensure that, read in the context of the entire record, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issues before the court.

(R. v. H.S.B.. 2008 SCC at para. 8)
. R. v. Aiken

In R. v. Aiken (Ont CA, 2021) the Court of Appeal sets out principles applicable to the issue of inadequate reasons for judgment in a criminal case:
[40] Trial judges are duty-bound to provide adequate reasons for their judgments: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 19. The failure to do so can constitute an error of law: R. v. Trachy, 2019 ONCA 622, 379 C.C.C. (3d) 51, at para. 68, leave to appeal discontinued, [2019] S.C.C.A. No. 277.

[41] Reasons for judgment allow for a “proper level of transparency and accountability [that is] essential to the maintenance of the integrity of the trial process and public confidence in that process”: R. v. Sliwka, 2017 ONCA 426, 138 O.R. (3d) 473, at para. 24. Without proper reasons, the parties are left wondering whether their claims have been heard, understood, and adjudicated upon in accordance with the legal principles applicable in the circumstances of the case: Sliwka, at para. 24; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15, 24.

[42] To be sure, reasons for judgment do not need to be perfect. This ground of appeal does not provide an appellate court with the opportunity to intervene “simply because it thinks the trial court did a poor job of expressing itself”: Sheppard, at para. 26. At the same time, the reasons for judgment must provide the parties and appellate courts with an opportunity for meaningful appellate review: Sheppard, at paras. 25, 55; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25.
. Canada (Attorney General) v. Kattenburg

In Canada (Attorney General) v. Kattenburg (Fed CA, 2021) the Federal Court of Appeal held that where an administrative decision is flawed for inadequate reasons, and the reviewing court cannot infer the correct answer from the administrative decision-maker's fact-findings, then the case should be sent back down with directions:
[17] Vavilov makes it clear that when confronted with the absence of a reasoned explanation, courts should refrain from determining the proper outcome and providing the required justification themselves (Vavilov at para. 96). This merely recognizes Parliament’s institutional design choice in conferring on administrative decision-makers the task of construing the legislation that they are called upon to apply and applying it to the facts of their case, exercises that call for deference on the part of reviewing courts. It follows that in a post-Vavilov context, the Federal Court judge should not have embarked on the Agency’s task.

[18] The appropriate remedy is to send the matter back to the Agency so that it can determine the matter for itself. This is not the type of case where this step can be bypassed because the outcome is self-evident (compare Manitoba Government and General Employees’ Union v. The Minister of Finance for the Government, 2021 MBCA 36 at paras. 104-108). ...


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