The Importance of Reasons for Judgement in Transparency

Anyone even within the vicinity of the justice system in Canada these days can easily tell that it is overwhelmed. The sheer volume of cases alone is cause for concern, and that doesn’t begin to illustrate the significant delays to everyone involved.

The Court of Appeal for Ontario recently released a decision in R. v. Artis, 2021 ONCA 862 which illustrates the types of problems the bench is facing, overturning a conviction and sentence in a case where the reasons for a verdict were provided about 31 months after the Notice of Appeal was filed.

The court stated,

[11] Reasons for judgment constitute the very means by which judges remain accountable for the verdicts they reach. Transparency in how verdicts are arrived upon is critical to ensuring that justice is not only done, but seen to be done. Remaining accountable to the parties and the public by explaining how verdicts have been arrived upon is fundamental to nurturing respect for the rule of law.

[12] Where judges simply announce verdicts and fail to provide reasons for the conclusions reached, it is impossible to know whether justice has been done and, without a doubt, it cannot be seen to have been done…

The trial occurred in April 2016 over 3 days, with the judge rendering the verdict in August 2016, indicating that written reasons would be released prior to the sentencing date. Instead, a short handwritten endorsement was released in November 2016, which included no reasoning but indicating they would be forthcoming.

An 11(b) application followed, which was heard in October 2017, but dismissed in November 2017, with reasons to follow. The sentence was imposed in March 2018, with the 11(b) application still outstanding, and over 19 months after the verdicts were announced.

The Court of Appeal emphasized the importance of avoiding the appearance of results-oriented reasoning. They cited the Court in R. v. Teskey,

17 …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. The circumstances of this case exemplify the kind of issues that can arise when the announcement of the verdict is divorced from the delivery of the reasons that led to it.

18 Reasons rendered long after a verdict, particularly where it is apparent that they were entirely crafted after the announcement of the verdict, may cause a reasonable person to apprehend that the trial judge may not have reviewed and considered the evidence with an open mind as he or she is duty-bound to do but, rather, that the judge has engaged in result-driven reasoning. In other words, having already announced the verdict, particularly a verdict of guilt, a question arises whether the post-decision review and analysis of the evidence was done, even subconsciously, with the view of defending the verdict rather than arriving at it. It is most important in a criminal case to guard against any result-driven consideration of the evidence because the accused is presumed innocent and entitled to the benefit of any reasonable doubt. 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. It is in this sense that the trial judge who appears to have already committed to a verdict of guilt before completing the necessary analysis of the evidence may cause a reasonable person to apprehend that he or she has not kept an open mind. Further, if an appeal from the verdict has been launched, as here, and the reasons deal with certain issues raised on appeal, this may create the appearance that the trial judge is advocating a particular result rather than articulating the reasons that led him or her to the decision.

While reasons should follow soon after a verdict is announced, the sheer volume of matters before the courts suggests that these types of delays will also become more common. The remedy provided here by the Court of Appeal, providing a new trial, will not help with the overall volume of cases either.

The most commonly cited solution to these challenges is to increase the number of appointments to the bench, which will likely assist. However, this is hardly the entire explanation of the dynamics that result in these circumstances.

By the time the accused filed his Notice of Appeal, he was self-represented. This is not unusual, as most members of the public would have exhausted their savings or any legal assistance by that point. Many people at this point would simply abandon their defence out of exhaustion, destitution, hopelessness, or a combination of all three.

The right to counsel will again be revisited, albeit in the context of custodial interrogation, in R. v. Dussault, which was heard last week. This is the first real opportunity to overturn the holding in R. v. Sinclair, and address the other prongs of the “iron triangle,” in R. v. Singh and R. v. Oickle.

Without the presence and the involvement of defence counsel, justice would not be seen to be done at all.

Comments

  1. Would seem to be a strong argument to have courts not deal with civil disputes but have trained arbitrators with subject-matter expertise lined up to put those to rest. While some counsel still believe that the courtroom is the best venue, and maybe so, the party time, cost, and anxiety ought also be brought into a discussion on reasonable recourse.

  2. Gerald,
    Absent exceptional circumstances, most lawyers do encourage their clients to consider arbitration.
    Those with resources to get counsel at early or even prior to a dispute often include such provisions in any agreement drafted.
    There is an entire system of arbitration, which often runs in parallel to the courts, that many members of the public may never be aware of.
    Omar