Her Majesty the Queen v. Brown [Indexed as: R. v. Brown]
61 O.R. (3d) 619
[2002] O.J. No. 3882
Docket No. C36644
Court of Appeal for Ontario,
Catzman, Laskin and Goudge JJ.A.
October 16, 2002
Criminal law -- Trial -- Reasons for judgment -- Sufficiency -- Trial judge's brief reasons rejecting accused's evidence and preferring Crown's were conclusory and generic -- Accused given no insight into why convicted beyond blanket adverse credibility finding -- Reasons [page620] not facilitating meaningful appellate review of correctness of decision -- Failure of trial judge to deliver meaningful reasons constituted error of law -- New trial ordered.
The accused was convicted of arson threatening property and mischief causing danger to life. The trial judge delivered brief reasons for judgment, stating that he "found that the Crown witnesses essentially were frank and truthful", that he "found when the accused testified, that the lack of the ring of truth became apparent", that he did not believe the accused and rejected his denials, and that where his evidence differed with the Crown evidence, he preferred the Crown evidence. He concluded by stating that "the accumulation of evidence is such that this court is not left in a state of doubt." The accused appealed.
Held, the appeal should be allowed.
The trial judge's reasons for judgment neither advanced the accused's understanding of the reasons for his conviction (beyond the blanket rejection of his testimony and the unenlightening reference to the "accumulation of evidence") nor did they facilitate meaningful appellate review of the correctness of the decision. Most of the trial judge's statements were simply conclusory and generic. They appeared without elaboration and bore virtually no relation to this accused and this case. The failure of the trial judge to deliver meaningful reasons for his decision was an error of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, and the accused's conviction could not stand.
APPEAL from a conviction for arson and mischief causing danger to life.
Shelley Hallett, for respondent. Neil Jones, for appellant.
The judgment of the court was delivered by
CATZMAN J.A.: --
The Appeal
[1] Just after 10:00 p.m. on a September night in 2000, a homeowner in Hamilton noticed that the house next door was on fire. [page621] The house belonged to Everett Brown, the appellant in this appeal. The spread of the fire threatened the neighbour's home and his life. Following an investigation, Brown was charged with arson threatening the neighbouring property and with mischief causing danger to life.
[2] Brown's trial took place over seven days in January, March and May, 2001. He was convicted on both counts and sentenced to incarceration for two years, to be served concurrently, on each count. He appeals only his convictions.
[3] For the reasons that follow, I would allow the appeal, set aside the convictions and direct a new trial.
The Facts
[4] It was conceded at trial that the fire was deliberately set, that it threatened the property next door and that it endangered the neighbour's life. The issue was whether it had been proven beyond a reasonable doubt that the appellant had set the fire. Twenty-seven witnesses testified at the trial, including the accused.
[5] The Crown's case rested on a number of components: observations of the appellant, earlier on the evening of the fire, on the deck of his house pouring what appeared to be a solvent into a container and a strong smell of solvents from the back of the house; the sighting of a damaged vehicle matching the appellant's pick-up truck in front of his house minutes before the fire began; evidence contradicting the appellant's story regarding the damage to his truck; statements made by the appellant to police on the day after the fire; and the results of the Ontario Fire Marshal's investigation of the fire.
[6] In his evidence, the appellant denied all of the components of the Crown's case and testified that he had been at a local tavern for several hours before the fire and did not return to his house until 10:30 p.m., about half an hour after his neighbour had noticed the house was burning. There were a number of serious inconsistencies between the appellant's evidence and the evidence led by the Crown.
[7] On the last day of the trial, the trial judge delivered the reasons for judgment that are set out in para. 11, below, convicting the appellant on both counts with which he was charged.
The Appellant's Submissions
[8] Mr. Jones argued two points in this court. The first related to alleged opinion evidence given by another of the appellant's neighbours to the effect that the appellant had a severe drinking [page622] problem and that she had a "strong feeling" that he was capable of building a bomb. The second related to the insufficiency of the trial judge's reasons.
[9] The neighbour's alleged opinion evidence was a fleeting reference in a longer passage. It was not the subject of objection, was not repeated or explored and was never referred to again. In the context of a trial by judge alone, we saw no substantial wrong or miscarriage of justice in the admission of this evidence, and we did not call upon Crown counsel to respond to Mr. Jones' submission on this point.
[10] We did, however, call on Ms. Hallett to respond to the submission regarding the insufficiency of the trial judge's reasons. For the reasons that follow, I agree with that submission.
The Reasons for Judgment
[11] The appellant testified on the last day of the trial. After the conclusion of his evidence and brief submissions by counsel, the trial judge adjourned for an hour and returned to deliver his reasons for judgment. In their entirety, they read:
I wish to thank counsel for their assistance throughout the course of this trial.
It was unfortunate systemically that the trial went over months before being completed, commencing in January, and now we are in the latter part of May. Evidence went days here, days there, half days here, half days there. That presents a difficulty to the bench. However, I have given careful consideration to the evidence. I have had the benefit of transcripts. I have considered the physical exhibits. I am prepared to make certain findings.
I find as a fact and I have no doubt that the fire was deliberately set.
I find as a fact and I have no doubt that the fire endangered life as alleged in court two.
I have reviewed the whole of the evidence and take the evidence as a whole.
I have considered the issue of credibility. I found that the Crown witnesses essentially were frank and truthful.
I found when the accused testified, that the lack of the ring of truth became apparent.
When the accused testified today in particular I do not believe him and I reject his denials. Where his evidence differs with the Crown evidence, I prefer the Crown evidence. I reject his denial that he was at the premises around 10:00 p.m. on the day in question. I reject his denial as to whether he set the fire.
The accumulation of evidence is such that this court is not left in a state of doubt.
Stand up, sir. I find as a fact and without doubt that you are guilty on both counts as charged. [page623]
From Burns to Sheppard and Braich
[12] The sufficiency of trial judges' reasons for judgment in criminal proceedings has been considered by the Supreme Court of Canada in a number of cases over the last decade.
[13] The first was R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193. Burns, a friend of the complainant's father, was convicted of indecent assault and sexual assault. At his trial, the complainant testified about a number of acts of indecent assault, sexual touching and forced sexual intercourse. Burns did not testify.
[14] The trial judge gave brief oral reasons at the conclusion of the trial. After reviewing the evidence, he found the complainant to be "a credible and believable witness", accepted her testimony and found Burns guilty on both counts.
[15] The British Columbia Court of Appeal set aside the convictions and directed a new trial. In its view, the complainant's evidence, on which the Crown's case almost entirely depended, required careful scrutiny, and the trial judge should, at minimum, have explained why the evidence did not raise a reasonable doubt.
[16] The Supreme Court of Canada allowed an appeal by the Crown and restored Burns' convictions.
The judgment of the court was delivered by McLachlin J. In passages that have been repeated in numerous subsequent cases, she said, at p. 664 S.C.R., pp. 199-200 C.C.C.:
. . . a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points [cases and citations omitted] . . . The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict.
This rule makes good sense. To require trial judges charged with heavy case-loads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.
[17] Less than a year later, the Supreme Court applied Burns in R. v. Barrett, 1995 129 (SCC), [1995] 1 S.C.R. 752, 96 C.C.C. (3d) 319. Barrett allowed an appeal from a judgment of this court, which had in turn allowed an appeal by the accused following his conviction for robbery. The reasons of the Supreme Court were delivered orally by Iacobucci J. He noted that Burns had not been released when this court rendered its judgment, and continued, at p. 753 S.C.R., p. 320 C.C.C.: [page624]
While it is clearly preferable to give reasons and although there may be some cases where reasons may be necessary, by itself, the absence of reasons of a trial judge cannot be a ground for appellate review when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances. The issue is the reasonableness of the finding not an absence or insufficiency of reasons.
[18] The sufficiency of a trial judge's reasons was again considered in R. v. R. (D.), 1996 207 (SCC), [1996] 2 S.C.R. 291, 107 C.C.C. (3d) 289, in which the court dealt with an appeal from the judgment of the Saskatchewan Court of Appeal. That court had dismissed an appeal by two accused from their convictions for sexual assault and assault causing bodily harm and an appeal by a third accused from his conviction for sexual assault. The Supreme Court, by a majority, allowed the appeal and directed a new trial with respect to the first two accused and an acquittal with respect to the third. For present purposes, it is not necessary to review the evidence given at trial, which was variously characterized as "confused", "contradictory" and "bizarre". Major J. (with whom Lamer C.J.C. and Sopinka J. and, on this subject, Cory J. and Iacobucci J., concurred) said, at 317-18 S.C.R., p. 308 C.C.C.:
McLachlin J. clearly set out the law regarding the requirement of trial judges to give reasons in Burns. However, it should be remembered that Burns dealt with a situation where the Court of Appeal agreed that the trial judge had evidence before him to support the conclusion he reached, but overturned the verdict due to lack of reasons. [Burns] . . . does not stand for the proposition that trial judges are never required to give reasons. Nor does it mean that they are always required to give reasons. Depending on the circumstances of a particular case, it may be desirable that trial judges explain their conclusions. Where the reasons demonstrate that the trial judge has considered the important issues in a case, or where the record clearly reveals the trial judge's reasons, or where the evidence is such that no reasons are necessary, appellate courts will not interfere. Equally, in cases such as this, where there is confused and contradictory evidence, the trial judge should give reasons for his or her conclusions.
[19] Recently, the Supreme Court returned to the subject of insufficient reasons in two companion cases: Sheppard v. R., 2002 SCC 26, 162 C.C.C. (3d) 298 and R. v. Braich, 2002 SCC 27, 162 C.C.C. (3d) 324.
[20] At the end of Sheppard's trial for possession of stolen property, the trial judge delivered reasons that comprised a single sentence:
Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged.
[21] The Newfoundland Court of Appeal allowed the accused's appeal on the ground that the trial judge's failure to address the [page625] contradictory evidence and to indicate how he arrived at the verdict was an error of law. An appeal by the Crown to the Supreme Court of Canada was dismissed. Binnie J., who delivered the judgment of the court, began his analysis in these words, at para. 15:
Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.
[22] He described as the functional requirement of reasons (at para. 24) the justification and explanation of the result, informing the losing party why he or she has lost and (at para. 25) the preservation and maintenance of meaningful appellate review of the correctness of the decision. He noted the distinction between alleged "unreasonable verdict" cases (paras. 34-38) and alleged "error of law" cases (paras. 39-46). Of the "error of law" cases, he said, at para. 46:
. . . the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. 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. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function.
[23] He rejected (at para. 48) the "floodgate argument" that already burdened trial judges will become overburdened and appeal courts swamped with a wave of cases alleging non- existent or inadequate reasons; cited (at paras. 53-54) the argument of proponents of a duty to give more extensive reasons; and set out (at para. 55) ten propositions summarizing the present state of the law on the duty of a trial judge to give reasons in the context of appellate intervention in criminal cases. Applying these principles [page626] to the case before him, he agreed (at para. 56) with the finding of the majority of the Newfoundland Court of Appeal that the decision of the trial judge was unintelligible and incapable of proper judicial scrutiny on appeal and dismissed the Crown's appeal.
[24] R. v. Braich fell on the other side of the line. The accused were charged with first degree murder, three counts of attempted murder and three alternative counts of aggravated assault arising out of a death and injuries caused to three persons in a drive-by shooting. There were inconsistencies and frailties in the identification evidence. In oral reasons covering 17 pages of transcript, the trial judge did not discuss the usual principles relating to identification evidence, the importance the law places on frailties in such evidence or the principal frailties in the identification evidence adduced at trial. The accused were convicted of manslaughter and three counts of aggravated assault. On their appeal from conviction, the British Columbia Court of Appeal held that the verdict was reasonable but directed a new trial on the ground that the frailties and troublesome aspects of identification evidence were sufficiently cogent that, without a more thorough examination by the trial judge, it was an error of law to find that the accused's identity had been proved beyond a reasonable doubt.
[25] An appeal by the Crown to the Supreme Court of Canada was allowed and the convictions restored. Again, the decision of the court was given by Binnie J. He addressed the ten propositions he had stated in Sheppard and, applying them to the circumstances, concluded (at para. 42) that the trial judge had "provided an intelligible pathway through his reasons to his conclusion" and committed no error of law.
The Present Case
[26] In my view, the trial judge's reasons in the present case fall on the Sheppard, rather than the Braich, side of the line. On examination, they neither advance the accused's understanding of the reasons for his conviction (beyond the blanket rejection of his testimony and the unenlightening reference to the "accumulation of evidence"), nor do they facilitate meaningful appellate review of the correctness of the decision.
[27] I turn to examine the reasons.
[28] After an expression of gratitude to counsel, the reasons begin with reference to the intermittence of the trial: days and half-days here and there over a four-month period (a process which in itself warranted, in my respectful opinion, greater elucidation than the bald statements that follow). The trial judge then refers to his consideration of the evidence, the transcripts and the [page627] physical exhibits, and proceeds to make "certain findings". The first two findings -- that the fire was deliberately set and that the fire endangered life -- were conceded and were never in issue. He then says that he has (as is his obligation in law) reviewed the whole of the evidence and taken the evidence as a whole.
[29] He deals next with credibility. He finds that the Crown witnesses "essentially were frank and truthful" (the term "essentially" is problematic: are there matters in respect of which he does not accept the Crown's evidence?). He finds that, when the appellant testified, the "lack of the ring of truth became apparent" (but he does not indicate or illustrate the basis for his conclusion). He then makes two findings that are, arguably, internally inconsistent: "when the accused testified today in particular [a curious expression, because the appellant testified only on that day], I do not believe and I reject his denials" and "where his evidence differs with the Crown evidence, I prefer the Crown evidence" (was there evidence from the appellant that did not differ from the Crown's evidence and which the trial judge did accept?). He rejects two specific denials made by the appellant: that he was at the premises around 10:00 p.m. on the day in question, and that he set the fire. He then records that "the accumulation of evidence is such that this court is not left in a state of doubt" (though he provides no insight into the content of the "accumulation of evidence" to which he refers). He then concludes by finding "as a fact" and without doubt that the appellant is guilty as charged.
[30] I appreciate that this court has gone on record as discouraging the microscopic analysis of a trial judge's reasons for the purpose of finding reversible error: R. v. W. (G.) (1996), 1996 427 (ON CA), 93 O.A.C. 1 at para. 69. That has not been my purpose in the last two paragraphs. My purpose has been to illustrate what little assistance the reasons provide in understanding the basis for the appellant's convictions or in assessing the soundness of that result. Most of the trial judge's statements -- reviewing the evidence as a whole, the findings of credibility, rejecting the appellant's evidence and preferring the Crown's, the accumulation of evidence -- are simply conclusory and generic. They appear without elaboration and bear virtually no relation to this accused and this case. Indeed, except for the use three times of the words "the fire" and the two sentences that reject the appellant's specific denials, they could equally apply to any other case on any other charge against any other accused.
[31] In my assessment, the failure of [the] trial judge to deliver meaningful reasons for his decision in this case was an error of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, and the appellant's convictions cannot stand. [page628]
A Postscript
[32] I take the liberty of adding the following postscript to these reasons.
[33] Sir Robert Megarry, the eminent British jurist, author and lecturer, used to pose to law students the question, "Who is the most important person in the courtroom?". He would receive all the customary answers: "the judge", "the lawyers", "the usher". But all those answers were, by his reckoning, wrong. The most important person in the courtroom, he said, was "the litigant who is going to lose". In his words:
It is to him that the judgment of the court must primarily be addressed. Even if the reasoning does not convince him, it should demonstrate that his case was properly understood and his arguments duly considered. [See Note 1 at end of document]
[34] Persons in the appellant's position, facing trial before a judge alone, are entitled to be told in greater than skeletal detail why they are about to lose their liberty. I do not mean to displace the pronouncements in Sheppard and Braich with Megarry's aphorism. But it seems to me to provide a sensible standard against which reasons for judgment may conveniently be measured. The reasons of the trial judge in the present case fall short, not only of the criteria in Sheppard, but of that standard as well.
Disposition
[35] I would allow the appeal, set aside the appellant's convictions, and direct a new trial.
Appeal allowed.
Notes
Note 1: Sir Robert Megarry, "The Judge" (1983) 13 Man. L.J. 189, at pp. 193-94.
R. v. Barrett, 1995 129 (SCC), [1995] 1 S.C.R. 752, 21 O.R. (3d) 736n, 179 N.R. 70, 96 C.C.C. (3d) 319, 38 C.R. (4th) 1; R. v. Braich, 2002 SCC 27, 210 D.L.R. (4th) 635, 285 N.R. 162, 162 C.C.C. (3d) 324, 50 C.R. (5th) 92; R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193, 29 C.R. (4th) 113 (sub nom. R. v. B. (R.H.)); R. v. R. (D.), 1996 207 (SCC), [1996] 2 S.C.R. 291, 144 Sask. R. 81, 136 D.L.R. (4th) 525, 197 N.R. 321, 124 W.A.C. 81, 107 C.C.C. (3d) 289, 48 C.R. (4th) 368; R. v. W. (G.) (1996), 1996 427 (ON CA), 93 O.A.C. 1, Sheppard v. R., 2002 SCC 26, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68 (sub nom. R. v. Sheppard (C.)), consd Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a)(ii) Authorities referred to Megarry, Sir R., "The Judge" (1983) 13 Man. L.J. 189