Her Majesty the Queen v. Cunningham [Indexed as: R. v. Cunningham]

106 O.R. (3d) 641

2011 ONCA 543

Court of Appeal for Ontario,

Doherty, R.P. Armstrong and Epstein JJ.A.

August 3, 2011

Criminal law -- Reasons for judgment -- Crown appeal -- Trial judge delivering brief oral reasons excluding evidence under s. 24(2) of Charter on basis of ss. 8 and 9 Charter breach stating written reasons would follow that day -- Written reasons not released until 25 months after oral reasons and judge on notice that Crown appealing on basis that oral reasons were inadequate -- Written reasons making express credibility findings against police officers -- Presumption that written reasons truly reflected reasoning process that led to decision being rebutted and written reasons not considered on appeal -- No reasons for Charter ruling existing that could be subjected to appellate review -- Crown's appeal from acquittal allowed -- Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).

The accused and his co-accused were charged with firearms offences after firearms were found in their vehicle and on the accused's person. They brought an application to exclude the firearms under s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the police stop and search violated their rights under ss. 9 and 8 of the Charter. After a lengthy voir dire in which the credibility of almost all of the witnesses was in issue, the trial judge delivered a brief oral decision allowing the application and stated that her reasons would be available later that day. As a result of the exclusion of the evidence, the accused and his co-accused were acquitted. The Crown appealed. The Crown made repeated requests for the written reasons for judgment and it was indicated a number of times that the release of the reasons was imminent. Over two years after the trial judge announced her decision on the Charter application, the trial judge released detailed, lengthy reasons in which she made express credibility findings against the police officers. The appeal turned on the sufficiency of the trial judge's reasons.

Held, the appeal should be allowed.

Reasons for judgment, even if released long after the decision, are presumed to reflect the reasoning that led the trial judge to the decision. However, that presumption is rebuttable. In the circumstances, a reasonable person could not be satisfied that the written reasons for judgment actually reflected the reasoning process that led to the decision. The trial judge offered no explanation for the 25-month delay between the ruling and the release of reasons, apart for an indication on one occasion that "unanticipated and extenuating circumstances" had delayed the release. Her comments when she delivered her brief oral decision that the reasons would be available at the end of the day could only reasonably be understood as a representation that the reasons existed at that time. The two-year passage of time and the absence of any explanation for the delay supported the inference that the written reasons were crafted entirely after, and probably some considerable time after, the announcement of the decision. It was also relevant that the trial judge was aware that the Crown had appealed and was alleging that her oral reasons were inadequate. Finally, the Charter application required difficult credibility assessments. Proper reasons for judgment had to demonstrate a full appreciation and consideration of the conflicting, confusing [page642] and voluminous evidence. It was very difficult for reasons prepared and delivered long after the decision to properly perform that function. The written reasons could not be considered on appeal, and the trial judge's brief oral comments were inadequate.

APPEAL by the Crown from the acquittal entered by Goodman J. of the Superior Court of Justice on April 8, 2009.

Cases referred to R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, 210 D.L.R. (4th) 608, 284 N.R. 342, J.E. 2002-582, 211 Nfld. & P.E.I.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 52 W.C.B. (2d) 360; R. v. Teskey, [2007] 2 S.C.R. 267, [2007] S.C.J. No. 25, 2007 SCC 25, 280 D.L.R. (4th) 486, 364 N.R. 164, [2007] 8 W.W.R. 385, J.E. 2007-1147, 74 Alta. L.R. (4th) 1, 412 A.R. 361, 220 C.C.C. (3d) 1, 47 C.R. (6th) 78, 73 W.C.B. (2d) 457, EYB 2007-120453, apld R. v. Port Chevrolet Oldsmobile Ltd., [2009] B.C.J. No. 1621, 2009 BCCA 357, 63 C.B.R. (5th) 1, 246 C.C.C. (3d) 355, [2009] G.S.T.C. 109, 274 B.C.A.C. 254, 196 C.R.R. (2d) 334, distd Other cases referred to R. v. Kendall (2005), 2005 21349 (ON CA), 75 O.R. (3d) 565, [2005] O.J. No. 2457, 200 O.A.C. 18, 198 C.C.C. (3d) 205, 19 M.V.R. (5th) 92, 66 W.C.B. (2d) 633 (C.A.); R. v. Walker, [2008] 2 S.C.R. 245, [2008] S.C.J. No. 34, 2008 SCC 34, EYB 2008-134315, J.E. 2008-1209, [2008] 6 W.W.R. 1, 310 Sask. R. 305, 294 D.L.R. (4th) 106, 57 C.R. (6th) 212, 231 C.C.C. (3d) 289, 77 W.C.B. (2d) 732, 375 N.R. 228 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 24(2) Criminal Code, R.S.C. 1985, c. C-46 [as am.] Highway Traffic Act, R.S.O. 1990, c. H.8

Deborah Calderwood, for appellant. Mark Halfyard, for respondent. The judgment of the court was delivered by

DOHERTY J.A.: --

I

[1] This is a single issue appeal. That issue arises out of the trial judge's failure to provide reasons for her ruling on a Canadian Charter of Rights and Freedoms motion until more than two years after the decision was rendered. The resolution of that single issue turns on the application of the principles set down in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, [2007] S.C.J. No. 25, to largely undisputed facts.

[2] I would hold that in the circumstances, a reasonable person could not be satisfied that the reasons for judgment actually reflect the reasoning process that led to the decision. There are, consequently, no reasons for the Charter ruling that can be [page643] subjected to appellate review. That ruling led directly to the respondent's acquittals. Absent reasons, the appeal must be allowed and a new trial ordered.

II

[3] On March 6, 2008, several police officers stopped a motor vehicle. The respondent, Kamar Cunningham, was driving. Troy Matthews was seated in the front passenger seat. The police ordered both men out of the vehicle. One of the officers saw what turned out to be a loaded handgun under the front passenger seat that had been occupied by Mr. Matthews. The officer searching Mr. Cunningham found a second loaded handgun tucked into Mr. Cunningham's waistband. Both men were arrested and charged with several firearm offences.

[4] At trial, before a judge alone, Mr. Cunningham and Mr. Matthews admitted that they were unlawfully in possession of the firearms. They argued, however, that the police stop and subsequent search contravened their rights under s. 9 and s. 8 of the Charter and that the firearms should be excluded from evidence under s. 24(2) of the Charter.

[5] The verdicts turned on the outcome of the Charter motion. If the firearms were admitted into evidence, Mr. Cunningham and Mr. Matthews were guilty of at least some, if not all, of the charges. If the firearms were excluded from evidence, the Crown could not prove any of the charges.

[6] The trial began with a lengthy voir dire into the alleged Charter breaches. The Crown called several officers involved in the stop and search. Mr. Cunningham and Mr. Matthews testified. Two very different versions of the events surrounding the stop and search of Mr. Cunningham and Mr. Matthews emerged during the evidence. The credibility of almost all of the witnesses was very much in issue.

[7] The Crown argued that the stop was authorized under the officers' Highway Traffic Act, R.S.O. 1990, c. H.8 powers and that the search was consistent with legitimate officer safety concerns. The Crown further argued that even if there were Charter breaches, the guns should not be excluded from evidence under s. 24(2).

[8] The defence maintained that the officers' purported reason for the stop was an after-the-fact fabrication and that there was no justification for the stop, making it arbitrary and the subsequent search therefore unreasonable. The defence further argued that the seriousness of the police misconduct, including giving fabricated evidence, demanded the exclusion of the firearms [page644] despite the undoubted reliability of that evidence, its importance to the prosecution and the seriousness of the charges.

[9] The trial judge reserved judgment after argument on the voir dire was completed. About a month later and after two brief adjournments, the trial judge announced her decision stating that her reasons would be available later that day. She found that the police conduct had violated the constitutional rights of Mr. Cunningham and Mr. Matthews under both s. 9 and s. 8 of the Charter. She further held that the evidence should be excluded. The trial judge proceeded to acquit both Mr. Cunningham and Mr. Matthews on all charges and informed counsel her reasons would be ready that afternoon.

[10] The Crown appealed the acquittals. Mr. Matthews was subsequently deported from Canada and the Crown has abandoned the appeal from his acquittals. Mr. Cunningham is now the only respondent.

[11] On May 4, 2011, over two years after announcing her decision in open court, and after repeated requests for her reasons, the trial judge released detailed, lengthy written reasons. In those reasons, the trial judge made express and powerful credibility findings against the police officers, going so far as to find that two of the officers had repeatedly committed perjury.

[12] In oral argument, counsel for the Crown and the respondent acknowledged that the appeal depended on whether this court could take the written reasons into account as truly reflective of the trial judge's reasons for acquitting Mr. Cunningham. Crown counsel conceded that if those reasons could be considered, they met the standard required by R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 and revealed no reversible legal error. Counsel for Cunningham conceded that if the written reasons could not be considered, the brief oral comments made by the trial judge in court in April 2009 did not meet the requirement in Sheppard, meaning that there were no reasons for the ruling. The failure to give reasons in this context constitutes an error in law.

[13] In their submissions, both counsel relied heavily on Teskey, a case in which the trial judge released reasons for judgment 11 months after announcing the decision in open court. As is made clear in Teskey, there is no per se rule that reasons released after a decision, even long after the decision they purport to explain, cannot be taken as valid reasons for that decision. To the contrary, reasons, even if released long after the decision, "are presumed to reflect the reasoning that led him [the trial judge] to his decision": Teskey, at para. 19. [page645]

[14] The presumption is, however, rebuttable: Teskey, at para. 21. If on the totality of the circumstances, including but not limited to the passage of time between the decision and the release of reasons, "a reasonable person would apprehend that the written reasons are, in effect, an after-the-fact justification for the verdicts rather than an articulation of the reasoning that led to the decision", those reasons must be disregarded by the appellate court in assessing the sufficiency of any reasons provided by the trial judge: Teskey, at para. 23.

[15] The assessment demanded by Teskey requires a careful review of the record. On this appeal, that record includes the trial proceedings and, pursuant to the order of Laskin J.A., the details of the efforts made to obtain written reasons.

III The Relevant Circumstances

[16] Argument on the Charter voir dire was completed on March 9, 2009. The trial judge adjourned the trial to March 26 for judgment. She subsequently further briefly adjourned the trial to April 1 and then to April 8. On April 8, she announced her decision holding that the accused had established breaches of s. 9 and s. 8 of the Charter on the balance of probabilities. With respect to s. 24(2), she said:

For the specific reasons that are included in the reasons for my ruling, it would not, in my view, be appropriate in the circumstances of this case to admit the evidence of the firearms. (Emphasis added)

[17] The trial judge then advised counsel that her reasons for her ruling would be provided that afternoon:

The reasons for my ruling, as I said before, will be provided to you and that will be done by e-mail this afternoon.

[18] No reasons were forthcoming. In late July 2009, some three and a half months later, an assistant at the Crown Law Office contacted the judge's assistant inquiring as to the availability of the reasons. The trial judge's assistant advised that the reasons would be available in a matter of days.

[19] The appeal was spoken to in this court on October 7, 2009. The reasons were still not available. Counsel for Mr. Cunningham advised the court that he had received an e-mail from the trial judge on October 7, 2009 in which she had said:

I am e-mailing you to update you re: my reasons on the Charter application, which have not yet been released. Although I anticipated getting them to you very shortly after I rendered my decision, a series of unanticipated and [page646] extenuating circumstances took place, which made it impossible for me to do so. I am just now in the process of catching up and expect to have the Reasons to you by the end of this week. (Emphasis added)

[20] The reasons were still not available in January 2010. Further inquiries were made and the trial judge's assistant advised Crown counsel on January 4, 2010 that the reasons would be available in a matter of days.

[21] By April 2010, the reasons had still not arrived. Crown counsel wrote directly to the trial judge on April 8, 2010 (with a copy to defence counsel) asking that the trial judge release her reasons and informing the trial judge that the absence of reasons was impeding the perfection of the Crown's appeal. The trial judge's assistant contacted the Crown Law Office and advised that the reasons would be delivered by Monday, April 12, 2010.

[22] The reasons were still not available in June 2010. The Crown obtained an order from Laskin J.A. permitting the Crown to perfect its appeal without the reasons for judgment. The Crown perfected its appeal in December 2010. In its factum, the Crown submitted that the brief oral reasons given by the trial judge were insufficient and that she had erred in law in failing to give reasons for her Charter ruling that had led directly to the acquittals: see R. v. Kendall (2005), 2005 21349 (ON CA), 75 O.R. (3d) 565, [2005] O.J. No. 2457 (C.A.).

[23] On February 5, 2011, Mr. Matthews' trial counsel e- mailed the trial judge:

I was recently reminded that I have still not seen Your Honour's full, written judgment in this matter.

I have also heard the matter is being appealed by the Crown on the basis of the alleged insufficiency of the brief oral reasons Your Honour gave when you promised full written reasons to follow. I have not been served with anything on behalf of Mr. Matthews, however, so this may simply be a rumour.

Regardless, has Your Honour, in fact, finished the judgment? If so, may I please have a copy. (Emphasis added)

[24] There is no response to this e-mail in the record.

[25] On February 16, 2011, the appeal was listed for hearing on May 4, 2011. That hearing date appeared on the court's website. In fact, the appeal was adjourned on May 2 to a date in June to allow new counsel for Mr. Cunningham time to prepare for the appeal.

[26] On May 4, 2011, the date on which the appeal had been originally scheduled to be heard, the trial judge distributed via e-mail her written reasons for her April 8, 2009 ruling. No [page647] explanation was offered for the two-year delay in the release of her reasons.

[27] The reasons fill 42 single-spaced pages. They contain a detailed summary of all of the evidence. In the reasons, the trial judge thoroughly examined, compared and parsed the conflicting evidence of the various witnesses. Her reasons focused particularly on the evidence of the two main police witnesses. She summarized and analyzed that evidence at length. The trial judge found that those two officers had perjured themselves in an attempt to create a legal justification for the stop of the vehicle and the search of Mr. Cunningham and Mr. Matthews. In respect of their testimony concerning the decision to stop the vehicle, the trial judge said, at para. 166:

In the end, no matter what the motive or motives may have been for the decision to follow and then stop the defendants, I had no doubt that these officers concocted the version of events upon which they later relied in order to be able to support the constitutionality of the detention and the admission of the evidence at trial.

[28] The trial judge reached an equally damning conclusion in respect of the officers' contention that they searched Cunningham and Matthews out of legitimate safety concerns. She said, at para. 176:

Because of the officers' decision to lie about the circumstances, there was no reliable or credible evidence before me to support an inference that a constellation of facts led to a reasonable concern for the presence of weapons or that the pat-down search was justified by the constellation of facts and the additional information regarding Mr. Matthews.

[29] The thrust and tone of the trial judge's findings in respect of the officers' conduct is found in para. 194:

I was satisfied that the police flagrantly and intentionally violated the defendants' rights under both sections 8 and 9 of the Charter. They then egregiously supported their actions by providing a false account of the events leading up to it. All of this occurred during a time when one of the officers was involved in the completion of the novice officer's training. In the particular circumstances, the evidence obtained by their actions simply could not be admitted.

IV Analysis

[30] Like Teskey, this is not a case about the adequacy of the trial judge's reasons. It is common ground that the oral comments made by the trial judge on April 8, 2009 do not provide adequate reasons, but that the written reasons released by her on May 4, 2011, if properly considered, are sufficient. However, before turning to the question on which this appeal turns, it is [page648] helpful to reiterate the purposes served by reasons for judgment in a criminal case and the various constituencies those reasons serve. In Sheppard Binnie J. observed, 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.

[31] Later, Binnie J. added the following, at paras. 24-25:

In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision[.]

[32] In this case, the accused had important constitutional rights at stake. At least two of the police officers had their professional reputations on the line. In addition, the facts gave rise to at least two matters of important public concern, the proliferation of handguns in the City of Toronto and the use of racial profiling by the police. The public, the accused and the police officer witnesses were entitled to reasons that truly set out the path taken by the trial judge through the conflicting evidence to the result announced in court. The Crown, as the losing party, was also entitled to reasons so that it could properly exercise its rights of appeal.

[33] Teskey instructs the appellate court to look for the requisite link between the decision and the reasons. That search begins from the "presumption of integrity" that reasons provided by the trial judge truly reflect the reasoning process leading to the decision: Teskey, at paras. 2-19, 20. That presumption rests on the long and strong tradition of judicial independence and impartiality in Canada: Teskey, per Abella J. in dissent, at para. 33.

[34] The presumption of integrity can only be displaced by "cogent" evidence that would lead a reasonable person to apprehend that the written reasons are not the road map to the decision, but are instead an after-the-fact justification for the decision. That distinction can be hard to discern. Decisions are [page649] naturally made before the reasons are fully formulated, much less articulated.

[35] Like the apprehension of bias inquiry, the determination of whether the presumption of integrity has been rebutted turns on the perception of the reasonable observer, considering the totality of the circumstances. This approach avoids the impossible task of deciding whether a particular set of reasons in reality describes the actual reasoning path taken by a judge: Teskey, at para. 23.

[36] There are several features of this case that convince me that a reasonable observer would not see the written reasons as reflective of the actual reasoning path taken to the decision announced two years earlier. They are (i) the length of time (25 months) between the ruling and the release of reasons; (ii) the trial judge's responses to the inquiries of counsel concerning the reasons; (iii) the comments made by the trial judge in the course of her ruling; (iv) the trial judge's knowledge that the Crown had launched an appeal and the grounds for that appeal; [and] (v) the nature of the central issues in this case, namely, questions of credibility and findings of fact.

[37] I begin with the length of time between the decision and the reasons. There is no time limit on the delivery of reasons. However, the longer the passage of time between the decision and the reasons for the decision, the greater the concern that the requisite link between the two does not exist. Twenty-five months is a very long time -- much longer than the 11 months in Teskey or the 18 months in R. v. Port Chevrolet Oldsmobile Ltd., 2009 BCCA 357, [2009] B.C.J. No. 1621, 246 C.C.C. (3d) 355 (C.A.), the authority primarily relied on by the respondent.

[38] The trial judge's responses to the repeated requests for the reasons also undermine the presumption of integrity. She offers no explanation for the two-year delay save the indication in October 2009 that "unanticipated and extenuating circumstances" had delayed the release of her reasons. In the same correspondence, she indicates they will be available at the end of the week. In fact, they were not available for over a year and a half. [page650]

[39] The trial judge not only offered no explanation for the delay, but also repeatedly, personally and through her assistant, advised counsel that the reasons would be available within a few days. While the failure to produce reasons within "a few days" as promised could be excused as undue judicial optimism, that explanation wears thin after the third or fourth time that the reasons are not forthcoming as promised. The inescapable reality is that the counsel received inaccurate information several times as to the availability of the reasons for judgment. Counsel were led to believe throughout the entire two-year time period that the reasons were only a matter of hours or days away.

[40] The comments made by the trial judge at the time she rendered her decision in April 2009 are also pertinent to the reasonable observer's determination of whether the written reasons eventually provided were linked to the decision made. From one perspective, the trial judge's comments in April 2009 support the existence of that link. Those comments provide a clear statement of the trial judge's "bottom line" on the various issues raised on the voir dire. There is no reason to doubt that her "bottom line" assessment was anything other than the product of a careful and honest consideration of the evidence and arguments. It is implicit in that "bottom line" that the trial judge rejected the police officers' evidence and that she regarded their conduct as sufficiently blameworthy to justify the exclusion of reliable and crucial evidence in a serious criminal case.

[41] Although one can readily infer in broad terms the essential credibility findings made by the trial judge from her oral comments, those comments offer no insight as to the basis upon which she reached those findings. This is not a case where the subsequent written reasons can be seen as supplementary to the briefer oral reasons given at the time the decision was announced. The absence of any analysis in the brief oral comments makes it more difficult to draw any connection between the decision and the ultimate reasons.

[42] A further aspect of the trial judge's oral comments is significant in considering whether the subsequent written reasons can be considered as proper reasons for judgment. In her brief oral comments, the trial judge indicated that her written reasons were complete as of the announcement of her decision and would be available that same day. Those comments cannot reasonably be read as indicating, as the trial judge suggested in her written reasons two years later (at para. 195), that the reasons would follow in the future. The trial judge's comments could only reasonably be understood as a representation that the reasons for judgment existed as of the time she gave her decision. [page651]

[43] In so holding, I would reject the suggestion that her comments could be understood as an indication that the reasons were substantially prepared, but needed some final finishing touches. Certainly, the two-year passage of time before the reasons were available, the language used in the reasons (see, for example, para. 195) and the absence of any explanation for the long delay support the inference that the written reasons were crafted entirely sometime after, and probably some considerable time after, the announcement of the decision. Reasons that are produced entirely after the fact can be the product, albeit subconsciously, of a result-driven reasoning process aimed at defending the decision announced rather than explaining the process that led to the decision: Teskey, at para. 18.

[44] In the absence of any explanation, and having regard to the subsequent events chronicled above, I think a reasonable person would conclude that one of two things happened in this case. Either the trial judge inaccurately represented the existence of the reasons on April 9, 2009, or the reasons existed, but for some unknown reason the trial judge did not release those reasons, but eventually prepared a new set of reasons that were released two years later. Either possibility goes a long way to undermining the presumption of integrity described in Teskey.

[45] The trial judge's knowledge that the Crown had appealed her decision and was alleging that her oral reasons were inadequate is also an important factor in determining whether a reasonable observer would see the necessary link between the decision and reasons. The risk that reasons delivered long after a decision are more in the nature of an after-the-fact defence of that decision than a description of the path taken to it is particularly acute where, to the judge's knowledge, an appeal has been launched in which the adequacy of the reasons is challenged.

[46] The trial judge was aware of the Crown appeal shortly after it was launched. More significantly, she knew in February 2011 that the Crown appeal was going forward on the basis that her brief oral comments did not constitute reasons for judgment and that the appeal should be allowed on that ground. Within three months of receiving that information and on the very day the appeal had been scheduled to be heard, the trial judge delivered her lengthy detailed reasons, which, if properly taken into account, fully answered the Crown's appeal.

[47] The mere fact that a trial judge is aware that an appeal has been launched when he or she delivers reasons for judgment does not mean that those reasons cannot be considered. As with other considerations, the existence of an appeal and the trial judge's knowledge of that appeal are but factors to be taken into [page652] account. In my view, however, a reasonable observer would, in the circumstances of this case, see the lengthy reasons delivered by the trial judge as motivated, at least in part, by the very natural desire to defend her decision against the specific challenge made by the Crown on appeal. That motivation, even if it operated entirely on a subconscious level, would lead to reasons that sought to justify the decision challenged on appeal rather than reveal the reasoning that led to the decision.

[48] Finally, the nature of the issues that had to be resolved on this Charter motion provides a further reason to doubt whether the written reasons are truly reflective of the trial judge's reasoning process. The Charter motion turned on findings of fact. Those findings required difficult credibility assessments that could only be made after a careful appraisal of conflicting, confusing and voluminous evidence. Proper reasons for judgment had to demonstrate a full appreciation and consideration of that evidence. It is very difficult for reasons prepared and delivered long after the decision to properly perform that function. Setting aside the ability to recall, months or years after-the-fact, features of the evidence that were relevant to credibility assessments, there is a real danger that, having publicly announced one's "bottom line" with respect to credibility assessments, the reasons will be written with a view to defending that conclusion rather than explaining the process that led to it: Teskey, at para. 23.

[49] This is not a case like R. v. Port Chevrolet Oldsmobile Ltd., where the facts were not in dispute and the case turned on the application of legal principles to those facts: see paras. 59-60. In that kind of case, the risk that reasons delivered long after the fact do not reflect the reasoning process is significantly reduced.

[50] Though none of the factors discussed above is determinative, in combination they rebut the presumption that the written reasons truly reflect the reasoning process that led to the decision on the Charter motion. A reasonable observer would, in the words of Teskey, "apprehend that the written reasons are in effect an after-the-fact justification for the verdicts rather than an articulation of the reasoning that led to the decision": para. 23.

V

[51] Although the analysis set out above is sufficient to dispose of the appeal, I will briefly address two additional points made by counsel for Mr. Cunningham in his helpful submissions. Counsel argued that the concerns that underlie the requirement that judges give reasons operate more strongly where those reasons address the ultimate verdict, especially where that verdict [page653] is a conviction. Counsel submits that a ruling on a Charter motion, even one that may determine the outcome of the case, does not engage the "subtleties of a reasonable doubt and the presumption of innocence".

[52] The adequacy of reasons is measured by reference to their ability to preserve and enhance meaningful appellate review: Sheppard, at para. 25. The nature of the decision under appeal and the grounds of appeal permitted by the operative statute will impact on the scope of appellate review and, therefore, on the adequacy of reasons. Reasons offered in support of an acquittal may be sufficient in the context of a Crown appeal on a question of law from that acquittal, when similar reasons offered to justify a conviction would not permit meaningful appellate review given the much broader rights of appeal afforded a convicted person: see R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, [2008] S.C.J. No. 34, at paras. 21-22; Kendall, at paras. 50-53.

[53] The nature of the decision challenged on appeal and the scope of the appeal permitted by statute can be relevant to the adequacy of the reasons provided. The adequacy of reasons is not the issue on this appeal. As outlined above, this appeal turns entirely on whether the written reasons can be considered as reasons for judgment. In determining that issue, I see no reason to distinguish between reasons released to explain a Charter motion that determines the result of a case and reasons released to support an acquittal or a conviction. All benefit from the presumption of integrity subject to rebuttal by cogent evidence that would lead a reasonable observer to apprehend that the reasons will not reflect the actual reasoning process, but were instead an after-the-fact justification for the result.

[54] The second point raised by counsel concerns the alleged unfairness to the respondent should this court allow the Crown's appeal. Counsel argues that the respondent should not be put in the position of having to justify the trial judge's delay, failing which he would be placed in jeopardy on the charges a second time and required to defend himself at a second trial years after the relevant events.

[55] I have some sympathy for this position. Clearly, the trial judge had reached a "bottom line" that favoured Mr. Cunningham. Because she effectively failed to give reasons for her "bottom line", Mr. Cunningham loses the benefit of that finding and must undergo a new trial. I cannot, however, describe that consequence as unfair. The Criminal Code, R.S.C. 1985, c. C-46 allows the Crown to appeal acquittals based on errors in law. The failure to offer reasons for the Charter ruling and hence the acquittal of Mr. Cunningham constitutes, on my analysis, an [page654] error in law. That error in law effectively undermines the validity of Mr. Cunningham's acquittals. There is nothing unfair in setting aside acquittals tainted by legal error. If events since the first trial, including the long delay, have prejudiced Mr. Cunningham's ability to defend himself on these charges, he can raise a claim based on s. 7 of the Charter at the new trial.

VI Conclusion

[56] I would allow the appeal, set aside all of Mr. Cunningham's acquittals and order a new trial on all counts.

Appeal allowed.