Her Majesty the Queen v. Shane Artis, 2021 ONCA 862

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211203 DOCKET: C65066

Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Shane Artis Appellant

Counsel: Michael Lacy and Bryan Badali, for the appellant Lisa Mathews and Leanne Siu, for the respondent

Heard: in writing

On appeal from the conviction entered by Justice Kofi N. Barnes of the Superior Court of Justice on November 21, 2016, and from the sentence imposed on March 22, 2018.

Reasons for Decision

[1] On August 10, 2016, the appellant was found guilty of possession of heroin for the purpose of trafficking and conspiracy to possess heroin for the purpose of trafficking. He was told that written reasons for judgment would follow. He was later sentenced to ten years’ incarceration, less about two years of presentence custody. It took over four years for the written reasons for judgment to be delivered.

[2] This is an appeal from conviction and sentence. The respondent concedes that the conviction appeal must be allowed on the basis that the reasons were insufficient because they were delivered so long after the verdicts were rendered. We agree.

[3] This was a short, judge-alone trial that took place in April 2016. The evidence was complete within three days. After closing submissions were made, the matter was put over for judgment. Despite the brevity of the case, it involved some complex issues. By way of example, the trial judge was called upon to apply the notoriously difficult co-conspirators’ exception to the hearsay rule; to decide upon continuity issues; and to consider expert evidence in determining what inferences, if any, could be drawn from coded language used in seized electronic communications.

[4] The scheduled day for judgment was adjourned three times because the trial judge was not ready to proceed. On August 10, 2016, when the trial judge finally rendered the verdict, he announced the following:

Mr. Artis, please stand. After trial in this particular matter and after considering all of the evidence, the court has reached the following verdict in this matter. With respect to count 1, importation, not guilty. Count 2, possession for the purpose, guilty. Count 3, conspiracy to import, not guilty. Count 4, conspiracy to, possession for the purpose of trafficking, guilty. So that is the verdict of the court. Written reasons will be released prior to sentencing date … for counsel to consider. So having reached those verdicts, we are to pick a date for sentencing . [Emphasis added.]

[5] On November 21, 2016, over three months after announcing the verdicts, and having promised to release written reasons prior to the sentencing date, the trial judge released a handwritten endorsement setting out three conclusions that he had reached:

(1) Continuity: The defence objection about continuity of evidence was “speculative and without evidentiary foundation.” The trial judge was satisfied that the “evidence as a whole indicates beyond a reasonable doubt no tampering or contamination of the package and its contents occurred, such as to compromise the integrity of the package and its contents.”

(2) Hearsay: The trial judge appears to have decided that the co-conspirator’s exception to the hearsay rule applied. As he put it, “Defence objections to the application of the co-conspirator’s exception to the hearsay rule, on the basis of a failure by the Crown to satisfy the necessity criteria, is dismissed. I am bound by the S.C.C. decision in Mapara [ R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 ] , at para. 31.”

(3) Burden of Proof: The trial judge expressed satisfaction beyond a reasonable doubt that the appellant had conspired with another named person and an unidentified person to possess heroin for the purpose of trafficking. He also expressed his conclusion that the unidentified person was “higher up in the drug trade hierarchy” and that the appellant was “situated in the low end of the drug trade hierarchy.”

[6] No reasoning was provided to support any of the above conclusions. The handwritten endorsement ended by reinforcing that written reasons expanding on the above findings would be forthcoming and that the sentencing date of November 24, 2016, three days later, would proceed as scheduled.

[7] At the appellant’s request, the sentencing did not go ahead as planned. Ultimately, the appellant brought a s. 11(b) Charter application, which was heard on October 13, 2017. On November 8, 2017, the s. 11(b) application was dismissed, again with written reasons to follow: “Mr. Artis’ s. 11(b) motion/application is dismissed. Reasons shall be released in due course.” Sentencing was to proceed on November 14, 2017.

[8] On March 22, 2018, now over 19 months after the verdicts had been announced, and with the reasons for judgment and the reasons on the s. 11(b) Charter application still outstanding, the appellant was sentenced to ten years in custody. With presentence custody accounted for, he had over eight years left to serve.

[9] The appellant filed a Notice of Appeal prior to the date of sentencing. At that point he was self-represented. In his Notice of Appeal, the appellant raised the failure of the trial judge to provide reasons for conviction and for dismissing the s. 11(b) application, as he put it, “precluding all meaningful appellate review.” On the same day that he was sentenced, the Crown consented to the appellant’s release on bail. Eventually the matter was converted to a solicitor appeal.

[10] The reasons for judgment and reasons for dismissing the s. 11(b) application were not released until October 14, 2020. This was over 50 months after the verdicts had been announced and over 35 months after the s. 11(b) application had been dismissed.

[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: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 15.

[13] As a practical matter, written reasons for judgment will sometimes follow the announcement of the verdict. While it is always preferable to explain the reasons underpinning a verdict as it is delivered, other overarching considerations may, on occasion, justify the need for a period of time to produce those reasons. Some examples of these overarching considerations in the criminal context were addressed in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at para. 17, including delivering immediate verdicts of acquittal to ensure an accused is not held in custody longer than necessary or delivering verdicts of guilt at the conclusion of a hearing to secure an earlier date for sentencing.

[14] Whatever the circumstances, when verdicts are announced with reasons to follow, those reasons should follow as quickly as possible. Where the reasons underlying a conviction or acquittal remain outstanding for a long time, everyone – accused, victims, other justice system participants, and the public – are left without any explanation or justification for the result reached, often leaving them without any means by which to assess whether justice has been achieved. It also deprives the losing party of a meaningful basis upon which to give consideration to grounds of appeal.

[15] Reasons are not meant to be after-the-fact justifications for verdicts reached, but explanations for how those verdicts were actually arrived upon. When reasons are delivered long after verdicts are announced, it can cause reasonable people to question whether the judge has “engaged in result-driven reasoning”, the very antithesis of the trial judge’s duty to consider the matter with an open mind and an indifference to the result: Teskey, at para. 18.

[16] While a decision is “presumed to reflect the reasoning that led [the trial judge] to [their] decision”, it is a rebuttable presumption: Teskey, at paras. 19, 21. Where a reasonable person would find that the written reasons for verdict reflect “an after-the-fact justification for the verdicts rather than an articulation of the reasoning that led to the decision”, the reasons must be disregarded on appeal because the presumption of integrity and impartiality will have been rebutted: R. v. Cunningham, 2011 ONCA 543, 106 O.R. (3d) 641, at para. 14, citing Teskey, at para. 23.

[17] We agree with the parties that the presumption of integrity and impartiality has been rebutted in this case.

[18] Standing on its own, delay in the delivery of reasons will not give rise to the rebuttable presumption: Teskey, at para. 23. Even so, the longer the reasons take from the time of verdict, the heavier that delay will factor into the reasonable person test. In other words, the longer the delay, the more likely it is that a reasonable person would find that the written reasons for judgment reflect an after-the-fact justification for the verdicts reached. The delay of 11 months between verdict and reasons in Teskey combined with other factors to rebut the presumption of integrity and impartiality such that the appeal was allowed, the convictions were set aside, and a new trial was ordered.

[19] This case involves a delay that is almost five times as long as the delay in Teskey. Notably, the reasons were delivered about 31 months after the Notice of Appeal had been filed. In our view, this factors very heavily into the assessment of what a reasonable person would think about the integrity of the reasons and whether they could possibly represent anything other than an after-the-fact justification for the verdicts reached.

[20] The extraordinary length of time to produce the reasons combines with the fact that there were complex, triable issues in this strictly circumstantial case. The trial judge did engage with those issues in his 27 pages of written reasons. However, like the respondent who concedes this appeal, we have no confidence that the reasoning on those issues and the inferences drawn reflect the actual path to the verdicts, rather than justification of the verdicts in the face of an appeal.

[21] In these circumstances, we cannot consider the written reasons for purposes of upholding the verdicts.

[22] The respondent has taken the very clear and responsible position that it will not re-prosecute the appellant. Therefore, we are asked by the respondent to acquit the appellant. In light of the evidentiary backdrop involved in this case, though, we decline to enter acquittals. Rather, the proper course is for the matter to return to the trial court and for the Crown to exercise its discretion accordingly.

[23] Therefore, the appeal is allowed, the convictions are set aside, and a new trial is ordered.

[24] The court expresses its thanks to counsel for their cooperation in this matter.

“Fairburn A.C.J.O.”

“K. Feldman J.A.”

“A. Harvison Young J.A.”