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Appeal-Judicial Review - Reasons - May Be Inferred from the Record

. R. v. J.L.

In R. v. J.L. (Ont CA, 2023) the Court of Appeal states doctrine regarding 'inadequate reasons for decision', including [paras 40-41] the extent to which recourse to the trial record may cure inadequacies:

(1) General principles

[24] Poor reasons on their own do not justify judicial intervention. Judicial intervention is only warranted where the reasons amount to an error of law because they foreclose meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25, 28.

[25] The court is to take a functional and contextual approach in reviewing a trial judge’s reasons: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 69. The Supreme Court has instructed that appellate courts are not to “finely parse” trial decisions, searching for errors; rather, “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”: G.F., at para. 69. In other words, reasons will be insufficient if they fail to articulate what was decided and why it was decided.

[26] Trial judges do not have an obligation to address all issues raised or all the evidence presented at trial. However, as the Supreme Court stated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55, the reasons must demonstrate that the trial judge understood and grappled with the critical issues, including contradictory evidence, at trial:

The appellate court, proceeding with deference, must ask itself whether the reasons considered with the evidentiary record, the submissions of counsel and the live issues at trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue. [Emphasis added.]

[27] As the Supreme Court cautioned in R.E.M., at para. 49, the reviewing court is to be mindful that articulating findings of credibility can be challenging. Nevertheless, reasons dealing with findings of credibility must show that the trial judge “seized the substance of the issue”, which “may require at least some reference to [the] contradictory evidence”: R.E.M., at para. 50. As held in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31, where the complainant’s truthfulness is a live issue and where there are significant inconsistencies in the complainant’s testimony, trial judges must demonstrate that they are alive to the issue and explain how they have reconciled these significant inconsistencies.

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[38] The respondent argues that the motive to fabricate was not a significant issue, in part because the complainant’s friend was not even aware of the social media posts. However, this is beside the point. While there may be a valid explanation for rejecting the defence theory that the complainant had a motive to fabricate, the trial judge’s reasons do not allow this court to assess whether and how the trial judge grappled with this issue: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, leave to appeal refused, [2021] S.C.C.A. No. 127, at para. 35; R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 30.

(3) Conclusion on sufficiency of reasons

[39] On their own, the failure to address some of the specific inconsistencies or the motive to fabricate may not be sufficient for a finding that the reasons are insufficient. Notably, the Supreme Court and this court have been clear that trial judges are not required to address every inconsistency in the evidence: R. v. L.T., 2019 ONCA 535, at para. 2; R. v. Tootiak, 2021 ONCA 356, at para. 5. However, cumulatively, I agree with the appellant that it is not possible to understand why, given the significant inconsistencies in the complainant’s evidence and the potential motive to fabricate, the trial judge nevertheless concluded that the complainant’s evidence was credible and reliable. It was not sufficient for him to describe her evidence in chief and to then conclude that he found her evidence credible and reliable without addressing any of the inconsistencies in her evidence. There is no formula for showing that a trial judge has grappled with a witness’s inconsistencies in deciding that the witness is nevertheless credible and their evidence is reliable on essential issues. However, to be capable of review, the reasons must nevertheless show that the trial judge grappled with the essential issues at trial. The reasons in this case fail to do so, and they are therefore not capable of appellate review.

(4) This is not a proper case for the court to look to the record to support the trial judge’s conclusions

[40] In argument, the respondent submitted that, if the court found that the reasons were insufficient, the court could nevertheless look to the record to support the trial judge’s findings. Indeed, in Sheppard, at para. 55, the Supreme Court stated that reasons may be sufficient when the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated”. However, this does not mean that, in cases such as this one, appellate courts are required to conduct credibility assessments afresh, particularly ones that require the reconciliation of multiple inconsistencies that go to material issues and ones that require the reconciliation of alleged motives to fabricate, none of which was even acknowledged by the trial judge.

[41] This argument was made by the Crown and rejected in Dinardo, at para. 34, where the Supreme Court stated that, in the face of contradictory evidence from a complainant, “[w]ithout some explanation in his reasons for judgment, there is simply no way to know how the trial judge satisfied himself that the complainant was a credible witness.” Similarly, in R. v. J.C., 2023 ONCA 101, having found the reasons insufficient on one of the counts on which the appellant was found guilty, this court held that it was not possible to resolve the “live issues” on that count based on the record alone: at para. 13. To resolve the issue would require the court “to step into the shoes of the trial judge, weigh the evidence, and redo his assessments of credibility and reliability”, which this court said is not the role of an appellate court: at paras. 12-13. The same concerns arise in this case.

. R. v. Lloyd

In R. v. Lloyd (Ont CA, 2023) the Court of Appeal considers that where the reasons are obvious from the record, an 'inadequate reasons' argument will not be successful:

[15] Where it is “apparent from the record, even without being articulated” how the trial judge arrived at her decision, no error will be found: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 6. The reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record: Sheppard, at para. 55; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32; R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at paras. 68-75.

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[20] While the Reasons for Judgment on the finding of guilt do not set out the basis upon which the trial judge resolved the discrepancy raised by the error in the initial English transcript, it is “apparent from the record, even without being articulated” how the trial judge arrived at her decision.

. Canada (Minister of Citizenship and Immigration) v. Vavilov

In Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2022) the Supreme Court of Canada considers the adequacy of reasons for decision [paras 91-98], and notes that they may be inferred from the record:

... Where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility.