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Appeal-Judicial Review - Reasons - Adequate Reasons (4)

. R. v. Williamson

In R. v. Williamson (Ont CA, 2023) the Court of Appeal considers inadequate reasons doctrine:
[43] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-17, McLachlin C.J. explained:
This Court ... has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.

It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered. ...

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. [Citations omitted; emphasis in original.]
. R. v. Jutras

In R. v. Jutras (Ont CA, 2023) the Court of Appeal comments on an appellate argument that the trial judge gave inadequate reasons:
[8] While it would have been better had the trial judge addressed the allegations of inconsistency and motive to fabricate, the reasons, read as a whole, in the context of the evidence and submissions, were not insufficient: see R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 108. The trial judge’s reasons clearly demonstrate that he accepted the complainant’s evidence that she was unaware of and did not consent to the two instances of photographing and the two instances of touching that the trial judge described in detail. A failure to explain the rejection of a submission does not make the reasons deficient if the reasons demonstrate the acceptance of contrary evidence: R. v. Wolynec, 2015 ONCA 656, 330 C.C.C. (3d) 541, at para. 60, citing R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 13. Here, the trial judge did not just accept the complainant’s evidence, but he also relied on the contents of the photos leading to the convictions as confirmatory evidence.
. R. v. Ahmed

In R. v. Ahmed (Ont CA, 2023) the Court of Appeal considered the law of inadequate reasons, here in a criminal dangerous offender appeal:
[102] Appeal amicus submits that the sentencing judge’s reasons for designating the appellant a dangerous offender were conclusory and that she failed to make the evidentiary findings necessary to support her conclusions that the appellant meets the statutory criteria for designation.

[103] As noted above, the sentencing judge found that the appellant meets the statutory criteria for designation under ss. 753(1)(a)(i) and (ii), and 753(1)(b) of the Criminal Code.

[104] In oral submissions, appeal amicus submitted that the sentencing judge failed to identify what patterns of conduct she relied on to support her findings under ss. 753(1)(a)(i) and (ii). Nor did the sentencing judge explain how she reached her conclusion under s. 753(1)(b). Appeal amicus submits such analysis and findings are essential because they allow the sentencing judge to assess the future risk a particular offender poses, which, in turn, is essential to determining the appropriate sentence to manage the offender’s risk.


[106] I would not accept appeal amicus’s submissions on this point. The task of an appellate court in assessing the sufficiency of reasons is to determine “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”: R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 69. In conducting this analysis, an appellate court may also look to the record. Even where the trial reasons do not explain the “what” and the “why”, where the answers to those questions are obvious from the record, there is no error: G.F., at para. 70.

[107] I acknowledge that the sentencing judge did not engage in an analysis of the meaning of the expressions “a pattern of repetitive behaviour” and “a pattern of persistent aggressive behaviour” in making her findings. However, in my view, such an analysis was unnecessary in the particular circumstances of this case. That the appellant meets these thresholds and qualified as a dangerous offender under all three sections under which the sentencing judge designated him was patent from the evidence the sentencing judge reviewed. Based on the totality of the evidence, there was no live issue that the appellant meets the criteria for designation as a dangerous offender under all three subsections.
. R. v. D.G.

In R. v. D.G. (Ont CA, 2023) the Court of Appeal considered 'adequacy of reasons', here their sufficiency for appellate review:
[9] One of the fundamental purposes of reasons is to explain why the result was reached and to allow for proper appellate review. In a criminal case, an accused is entitled to know why they were convicted and to have the basis for that conviction reviewed. As Binnie J. explained in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 46:
In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention.
[10] In light of the trial judge’s findings regarding the complainant’s evidence, we do not know the basis for his conclusion that she could be believed with respect to this one count of sexual assault, notwithstanding the credibility problems he had identified, nor does the appellant know. We cannot test his conclusion against the available record. The trial judge’s reasons are simply inadequate. As was noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19:
This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court.
. R v. Ilunga

In R v. Ilunga (Ont CA, 2023) the Court of Appeal considered reasons for decision, here in a criminal case:
[16] Reasons for judgment must be read as a whole. An isolated use of an inappropriate word is not enough to demonstrate an error in law, particularly one involving a fundamental legal principle like the burden of proof: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at para. 32.


[28] The key principles regarding the sufficiency of reasons are well-established:
. Appellate review of trial reasons must be functional and contextual: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 32;

. Trial reasons must (i) convey to the parties a decision that is reasonably intelligible to them, having regard to the particular circumstances of the case; (ii) provide the basis for meaningful appellate review of the correctness of the judge’s decision; and (iii) provide public accountability: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R.E.M., at para. 15; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 68;

. Reasons fulfill these functions if, read in context, they show why the judge decided as he or she did: R.E.M., at para. 17. What is required is a logical connection between the ‘what’ — the verdict — and the ‘why’ — the basis for the verdict. 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: R.E.M., at para. 17;

. The inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31;

. In assessing the sufficiency of reasons, regard must be had to the time constraints and general press of business in the criminal courts: Sheppard, at para. 55 (7); and

. Reasons must sufficiently articulate how credibility concerns were resolved: Dinardo, at para. 26. Findings on credibility must be made with regard to the other evidence in the case, which may require at least some reference to the contradictory evidence. The degree of detail required in explaining findings on credibility may vary with the evidentiary record and the dynamic of the trial, as the factors supporting or detracting from credibility may be clear from the record: R.E.M., at paras. 50-51.
. Mehedi v Mansour

In Mehedi v Mansour (Div Court, 2023) the Divisional Court addresses the degree of reasons in a motion to strike:
[42] On a motion to strike a claim, a judge is required to provide reasons that explain why the claim is being struck, which must be more than merely conclusory: Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 at paras. 51-52.
. R. v. V.K.

In R. v. V.K. (Ont CA, 2023) the Court of Appeal considered the issue of adequacy of criminal reasons for decision:
[10] We disagree. The trial judge’s brief reasons do reveal a clear basis for conviction. As recently reiterated by this court in R. v. J.C., 2023 ONCA 101, appellate review of the sufficiency of reasons follows a functional approach and requires the reading of the reasons in the context of the evidence, the submissions of counsel and the live issues at trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55. Intervention is justified where deficiencies in the reasons foreclose meaningful appellate review, but poor articulation of reasons, by itself, does not provide a ground for appellate intervention: R. v. Sheppard, 2002 SCC 26, [2002] 1. S.C.R. 869, at paras. 25-28; J.C. at paras. 4-5.

[11] There is no question that the trial judge’s reasons for conviction were, as the appellant submitted “unorthodox” and “not delivered according to the usual procedure”. In particular, as the appellant argues, there was no clear break between the closing submissions, during which there was very engaged discussion between counsel and the trial judge, and the trial judge’s reasons. That said, we were not directed to any authority in support of the position that this unorthodox approach constituted, in itself, reversible error. We do not accept the argument that the absence of a break between the submissions and the trial judge’s reasons manifest a lack of deliberation. Here, the path to conviction was clear from the record read as a whole, including the closing exchanges with counsel, the trial judge’s findings on credibility, and his conclusions.
. R. v. A.B.

In R. v. A.B. (Ont CA, 2023) the Court of Appeal characterizes requirements of criminal reasons for decision:
[16] This ground of appeal is an argument that the trial judge’s reasons were insufficient. In considering an argument of insufficiency of reasons, it is important to bear in mind what is, and is not, required for reasons for judgment to be sufficient to fulfill the functions of explaining why an accused was convicted or acquitted, providing public accountability, and permitting effective appellate review. Reasons for judgment must explain what the trial judge has decided and why. However, a trial judge is not required to expressly address every purported inconsistency in a complainant’s evidence or respond to every argument raised by counsel: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-18, 32, and 64; R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 22, 28; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30.
. R. v. T.O.

In R. v. T.O. (Ont CA, 2023) the Court of Appeal states the deference accorded to a trial judge on an appeal, both with respect to credibility findings and with the assessment of reasons for decision:
[29] A trial judge is owed very significant deference with respect to findings of credibility and reliability of witnesses: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 81; R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 18, per Pepall J.A. (dissenting; adopted in 2020 SCC 36, 452 D.L.R. (4th) 1). In addition, courts of appeal are instructed not to parse the reasons of the trial judge looking for error. Instead, as the Supreme Court of Canada directed in G.F., “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”: at para. 69.
. Westdale Properties v. Reisher

In Westdale Properties v. Reisher (Div Court, 2023) the Divisional Court considered, and dismissed, a landlord's motion to quash an RTA s.210 appeal on being of "devoid of merit", in part because of inadequate reasons (here regarding the LTB's treatment of the RTA 83(1) 'unfairness' discretionary dismissal, which is a mandatory consideration):
[36] I disagree. The LTB speaks through its reasons. The reasons are the place where parties may expect to see the important issues and relevant legal tests applied, and explained meaningfully, particularly in matters of significance, such as in eviction cases. While the transcript may go some way to demonstrating that the LTB was alive to the issues, it is the process of explanation and elucidation in reasons which puts on record how those issues were balanced and determined. Here, the reasons from the Hearing Decision do not discuss the impact on Ms. Reisher or any of the evidence from her support team. The reasons include only a one-line, conclusory sentence without any explanation of the circumstances and the requirements found in s. 83. I therefore find that there is an arguable point that the LTB erred in law by not meaningfully considering s. 83, an important provision in the overall scheme of the RTA.
. DeJong (Re)

In DeJong (Re) (Ont CA, 2023) the Court of Appeal considers the adequacy of reasons for decision, here in a criminal context:
[1] The appellant submits that the reasons of the Board are inadequate and fail to contain any analysis of the relevant evidence, or any explanation for the Board’s conclusions, or the order made by the Board. The adequacy of reasons must be considered, having regard to the entirety of the record, the specific issues raised, and the arguments made: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 69. Viewed from that perspective, the Board’s reasons, while no doubt brief, are adequate.
. McDonald v. Toronto-Dominion Bank

In McDonald v. Toronto-Dominion Bank (Ont CA, 2022) the Court of Appeal states briefly the 'reasons' for providing reasons for decision:
[123] Trial judges have an obligation to provide reasons. Reasons provide a level of accountability for all judicial decisions. They serve to justify the result, explain how the result was achieved, tell the party that lost why they lost, allow for informed consideration as to whether an appeal should be taken, and allow for effective appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11, 35.
. Caron v. Canada (Attorney General)

In Caron v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered adequacy of reasons for a decision:
[45] Next, it is well-established law that the Board "“need not refer in its reasons to each and every piece of evidence before it, but is presumed to have considered all of the evidence. […] [A]ssigning weight to evidence, whether oral or written, is the province of the trier of fact”" (Simpson v. Canada (Attorney General), 2012 FCA 82, 213 A.C.W.S. (3d) 223 at para. 10). Here, the adjudicator heard twenty-two days of oral testimony, including cross-examinations, and considered several volumes of written evidence and written submissions. I cannot substitute my own views of the evidence for that of the Board’s because I might have weighed the evidence differently.
. BCE Inc. v. Québecor Média Inc.

In BCE Inc. v. Québecor Média Inc. (Fed CA, 2022) the Federal Court of Appeal considered the role of a tribunal's expertise in assessing reasonableness in a JR, how that expertise may alleviate the detail required by reasons for decision:
[61] The Supreme Court emphasized the use of specialized knowledge by decision makers, as demonstrated in their reasons. Sensitivity to a tribunal’s demonstrated expertise may reveal to a reviewing court that conclusions (or reasoning) that are puzzling or counterintuitive on their face may nevertheless accord with the purposes and practical realities of the relevant administrative regime. This demonstrated experience and expertise may also explain why a given issue is treated in less detail than it would perhaps be in a judicial decision.


[63] All of this to say that the Commission’s decisions are not to be read without reference to the Commission’s practices and procedural guidelines. It is also worth noting that the Commission often deals with sophisticated litigants, like Bell and Québecor, who are very knowledgeable with respect to its policies and procedures. In this case, the Commission has a Broadcasting and Telecom Information Bulletin CRTC 2013-637 which deals with "“Practices and procedures for staff-assisted mediation, final offer arbitration and expedited hearings”". Similarly, the Wholesale Code deals with the factors which assist in the determination of the fair market value of a service. These documents shed light on the Commission’s analysis. The conclusion to be drawn from the Supreme Court’s comments about tribunal reasons is that they cannot be read as though all relevant considerations must be addressed within the four corners of the decision itself.

[64] In particular, the Commission does not have to explain to the parties what they already know. For that reason, the Commission’s decisions in these cases were brief. The Commission’s reasons reflect the fact that it is writing for sophisticated parties who have access to its procedural and substantive documentation.


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