R. v. R.E.M. (2008), 380 N.R. 47 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2008] N.R. TBEd. OC.001
Her Majesty The Queen (appellant) v. R.E.M. (respondent) and Attorney General of Ontario and Attorney General of Alberta (intervenors)
(32038; 2008 SCC 51; 2008 CSC 51)
Indexed As: R. v. R.E.M.
Supreme Court of Canada
McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ.
October 2, 2008.
Summary:
R.E.M. was charged with six counts of historical sexual offences. He applied for a stay of proceedings on the basis of unreasonable delay.
The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 987, dismissed the application.
The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 1679, convicted R.E.M. of three counts. R.E.M. appealed from the convictions.
The British Columbia Court of Appeal, in a decision reported at 238 B.C.A.C. 176; 393 W.A.C. 176, allowed the appeal on two counts, ordering a new trial as to them, and dismissed the appeal on the third count. The Crown appealed.
The Supreme Court of Canada allowed the appeal. The convictions were restored.
Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – R.E.M. was convicted of three counts of historical sexual assault regarding the complainant, C.J. – The appeal court overturned two of the convictions on the basis that the trial judge’s reasons were insufficient – The Supreme Court of Canada allowed the Crown’s appeal, restoring the convictions – The court reviewed the jurisprudence regarding the test for sufficient reasons, coming to the following conclusions: (i) appellate courts were to take a functional, substantive approach to the question, reading the reasons as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which the reasons were delivered; (ii) the basis for the verdict had to be “intelligible” or capable of being made out in the sense that a logical connection between the verdict and its basis was apparent, although there was no need for a detailed description of the judge’s process in arriving at the verdict and (iii) in determining whether the logical connection was established, the court was to look to the evidence, the submissions and the trial’s history to determine the “live” issues as they emerged – The court indicated that this summary was not exhaustive and that para. 55 of R. v. Sheppard (C.) (2002 SCC) provided a more comprehensive list of key principles – See paragraphs 15 to 35.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – R.E.M. was convicted of three counts of historical sexual assault regarding the complainant, C.J. – The appeal court overturned two of the convictions on the basis that the trial judge’s reasons were insufficient – The Crown appealed – At issue regarding the test for sufficient reasons was the degree to which context informed the assessment of the reasons’ sufficiency – The Supreme Court of Canada indicated that the contextual approach to assessing the sufficiency of reasons recognized that the trial process, including the reasons, was a dynamic process in which the evidence, counsel and the judge played different, but imbricated, roles – Whether the reasons for judgment were sufficient had to be judged in the full context of how the trial unfolded – The question was whether the reasons, viewed in light of the record and counsel’s submissions on the live issues, explained why the decision was reached by establishing a logical connection between the evidence and the law on one hand and the verdict on the other – See paragraphs 37 to 41.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – R.E.M. was convicted of three counts of historical sexual assault regarding the complainant, C.J. – The appeal court overturned two of the convictions on the basis that the trial judge’s reasons were insufficient – The Crown appealed – At issue regarding the test for sufficient reasons was the degree of detail required in connecting particular pieces of evidence to the verdict or explaining propositions of law – The Supreme Court of Canada observed that the appeal court had faulted the trial judge principally for giving insufficiently precise reasons for accepting C.J.’s evidence and rejecting R.E.M.’s, as well as for not stating precisely what evidence he accepted or rejected on each of the counts – However, detailed recitations of evidence or law were not required – What was required was that the reasons, read in context, showed that the judge had seized the matter’s substance – While the degree of detail required might vary with the circumstances, such as where there was contradictory evidence or there were unsettled principles of law, the trial judge was not required to recite pages of “boilerplate” or review well-settled authorities in detail and a failure to do so was not an error of law – See paragraphs 42 to 47.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – R.E.M. was convicted of three counts of historical sexual assault regarding the complainant, C.J. – The appeal court overturned two of the convictions on the basis that the trial judge’s reasons were insufficient – The Crown appealed – At issue regarding the test for sufficient reasons was how much had to be said on findings of credibility – The Supreme Court of Canada indicated that assessing credibility was a difficult and delicate matter that did not always lend itself to precise and complete verbalization – While it was useful for a judge to attempt to articulate reasons for believing or disbelieving a witness, the exercise might not be purely intellectual and might involve factors that were difficult to verbalize – What was required was that the reasons showed that the judge was seized of the issue – The degree of detail required in explaining findings of credibility might vary with the evidentiary record and the trial’s dynamic – The factors supporting or detracting from credibility might be clear from the record – In such cases, the reasons would not be found insufficient simply because the judge failed to recite those factors – See paragraphs 48 to 51.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – R.E.M. was convicted of three counts of historical sexual assault regarding the complainant, C.J. – The appeal court overturned two of the convictions on the basis that the trial judge’s reasons were insufficient – In allowing the Crown’s appeal, the Supreme Court of Canada discussed the role of appellate courts in assessing the sufficiency of a trial judge’s reasons – The appellate court’s point of departure in the analysis had to be a deferential stance based on the proposition that the trial judge was in the best position to determine matters of fact and was presumed to know the basic law – Proceeding with deference, the court was to ask whether the reasons, considered with the evidentiary record, counsel’s submissions and the live issues at trial, revealed the basis for the verdict – If the evidence was contradictory or confusing, the appellate court was to ask whether the trial judge appeared to have recognized and dealt with the contradictions – If there was a difficult or novel issue of law, the appellate court was to ask whether the trial judge recognized and dealt with that – If the answers to those questions were affirmative, the reasons were not deficient, notwithstanding a lack of detail or the fact that they were less than ideal – The appellate judges were not to sift through the record, substituting their own analysis of the evidence for that of the trial judge simply because the reasons did not comply with their idea of ideal reasons – If the appellate court concluded that the trial judge had not dealt with the substance of the critical issues, then, and only then, was it entitled to conclude that the reasons’ deficiency was an error in law – See paragraphs 52 to 57.
Courts – Topic 583
Judges – Duties – Re reasons for decisions (incl. notes) – R.E.M. was convicted of three counts of historical sexual assault regarding the complainant, C.J. – The appeal court overturned two of the convictions on the basis that the trial judge’s reasons were insufficient in that they failed to (i) explain clearly which of the offences were proven by which of the 11 incidents on which evidence was led; (ii) mention some of, or make general comments about, the accused’s evidence; (iii) reconcile the judge’s generally positive findings on C.J.’s evidence with the rejection of some of her evidence and (iv) explain why R.E.M.’s plausible denial was rejected – The Supreme Court of Canada allowed the Crown’s appeal – While the reasons might not have been ideal, the question was whether, when considered in the context of the record and the live issues at trial, they failed to disclose a logical connection between the evidence and the verdict reached to permit meaningful appeal – The central issue at trial was credibility – It was clear that the trial judge accepted all, or enough of, the complainant’s ample evidence and was not left with a reasonable doubt on the whole or from R.E.M.’s contradictory evidence – When the record was considered as a whole, the verdict’s basis was evident – Instead of looking for this basis, the Court of Appeal had focussed on omitted details and proceeded from a sceptical perspective, having concluded that R.E.M.’s denial of the charges was plausible – The appeal court had fallen into the trap of ignoring the trial judge’s unique position to see and hear witnesses and had, instead, substituted its own assessment of credibility for the trial judge’s view by impugning the reasons for judgment for not explaining why a reasonable doubt was not raised – The convictions were restored – See paragraphs 58 to 68.
Criminal Law – Topic 4684
Procedure – Judgments and reasons for judgment – Reasons for judgment – Sufficiency of – [See all
Courts – Topic 583
].
Evidence – Topic 464
Functions of counsel, judge and jury – Credibility of evidence – [See fourth
Courts – Topic 583
].
Evidence – Topic 4022
Witnesses – General – Credibility – Considerations – [See fourth
Courts – Topic 583
].
Practice – Topic 8803
Appeals – General principles – Whether trial judge must give reasons for rejecting evidence or for credibility findings – [See third and fourth
Courts – Topic 583
].
Practice – Topic 8808
Appeals – General principles – Duty of appellate court respecting conclusions or interpretation of trial judge – [See sixth
Courts – Topic 583
].
Practice – Topic 8817
Appeals – General principles – Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment – [See first, fifth and sixth
Courts – Topic 583
].
Practice – Topic 8820
Appeals – General principles – Duty of appellate court re findings of credibility by trial judge – [See fourth and sixth
Courts – Topic 583
].
Practice – Topic 8823
Appeals – General principles – Duty of appellate court re evidence overlooked or disregarded by trial judge – [See sixth
Courts – Topic 583
].
Practice – Topic 8825
Appeals – General principles – Presumption that trial judge applied applicable rules – [See fifth
Courts – Topic 583
].
Cases Noticed:
R. v. Inhabitants of Audly (1699), 2 Salk. 527; 91 E.R. 448, refd to. [para. 8].
Swinburne v. Syme (David) & Co., [1909] V.L.R. 550 (S.C.), affd. [1910] V.L.R. 539 (Aust. H.C.), refd to. [para. 8].
R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271, refd to. [para. 8].
Glennie v. McD. & C. Holdings Ltd., [1935] S.C.R. 257, refd to. [para. 9].
R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 10].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 10].
United States v. Forness (1942), 125 F.2d 928 (2nd Cir.), refd to. [para. 12].
R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 16].
R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 2002 SCC 27, refd to. [para. 25].
R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 28].
Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 29].
R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 31].
R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 31].
R. v. Walker (B.G.) (2008), 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 34].
R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 45].
H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 54].
R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 56].
Authors and Works Noticed:
Broom, Herbert, Constitutional Law Viewed in Relation to Common Law, and Exemplified by Cases (2nd Ed. 1885), pp. 147, 148 [para. 12].
Denning, Alfred, The Road to Justice (1955), p. 29 [para. 11].
Dyzenhaus, David, The Unity of Public Law (2004), p. 121 [para. 11].
Laskin, Bora, A Judge and His Constituencies (1976-1977), 7 Man. L.J. 1, pp. 3, 4 [para. 8].
Liston, Mary, “Alert, alive and sensitive”: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canada Public Law, in Dyzenhaus, David, The Unity of Public Law (2004), p. 121 [para. 11].
MacMillan, The Writing of Judgments (1948), 26 Can. Bar Rev. 491, p. 491 [para. 11].
Taggart, Michael, Should Canadian Judges Be Legally Required to Give Reasoned Decisions in Civil Cases (1983), 33 U.T.L.J. 1, p. 7 [para. 11].
Counsel:
Alexander Budlovsky, Q.C., for the appellant;
J.M. Brian Coleman, Q.C., and Lisa Jean Helps, for the respondent;
M. David Lepofsky and Amanda Rubaszek, for the intervenor, Attorney General of Ontario;
David C. Marriott, for the intervenor, Attorney General of Alberta.
Solicitors of Record:
Attorney General of British Columbia, Vancouver, B.C., for the appellant;
J.M. Brian Coleman, Q.C., Vancouver, B.C., for the respondent;
Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;
Attorney General of Alberta, Edmonton, Alberta, for the intervenor, Attorney General of Alberta.
This appeal was heard on May 16, 2008, by McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. On October 2, 2008, McLachlin, C.J.C., delivered the following reasons for judgment for the court in both official languages.
