Friday, October 03, 2008

Reviewing judge alone verdicts

In two decisions yesterday, the second of which applied the first, the Supreme Court of Canada explained when the reasons for verdict at a judge alone trial are sufficient to survive review on appeal: R v REM [2008] SCC 51 and R v HSB [2008] SCC 52 (both 2 October 2008).

The key to assessing the adequacy of reasons is appreciation of the functions of such reasons and to apply those to the context of the instant case. These are set out in REM at paras 11 and 12, and the Court, in a unanimous judgment in each case delivered by McLachlin CJ, also referred to R v Sheppard [2002] SCC 26 at 46, 50 and 55 for a fuller statement of them.

An overview of what is required of an appellate court is set out in REM at 55-57:

"[55] 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 the 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.

"[56] If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. For example if, in a case that turns on credibility, a trial judge explains that he or she has rejected the accused's evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused's evidence failed to raise a reasonable doubt. Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. As was established in Harper v. The Queen, 1982 CanLII 11 (S.C.C.), [1982] 1 S.C.R. 2, at p. 14, "[a]n appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. ... Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede."

"[57] Appellate courts must ask themselves the critical question set out in Sheppard: do the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review? To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved. If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo
[[2008] SCC 24]), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law."

In each of the present cases the British Columbia Court of Appeal had erred, in REM by approaching the case from a defence perspective of scepticism, and in that case and in HSB by substituting its own credibility findings for those of the respective trial judges.

The Court did not refer to its own rather weak decision in R v Jackson [2007] SCC 52 (blogged here 6 December 2007) perhaps giving us reason to think that case is best forgotten, and there would have been value in considering AK v Western Australia (blogged here 27 March 2008) for a comparison with the appellate approach to miscarriage of justice.

Considerations such as these will be increasingly relevant as judge alone trials become more frequent, as they will when judges have the power to order trial without jury for cases that are long (more than 20 days) or complex (so that a jury would be unlikely to be able to perform its function effectively), or where there are reasonable grounds to apprehend intimidation of current or future jurors. Such provisions are due to come into force in New Zealand on 25 December 2008 pursuant to s 361D and E of the Crimes Act 1961.

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