SUPREME COURT OF CANADA

Citation: R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51

Date: 20081002

Docket: 32038

Between:

Her Majesty The Queen

Appellant

and

R.E.M.

Respondent

‑ and ‑

Attorney General of Ontario and

Attorney General of Alberta

Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 69)

McLachlin C.J. (Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ. concurring)

R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51

Her Majesty The Queen Appellant

v.

R.E.M. Respondent

and

Attorney General of Ontario and Attorney General of Alberta Interveners

Indexed as: R. v. R.E.M.

Neutral citation: 2008 SCC 51.

File No.: 32038.

2008: May 16; 2008: October 2.

Present: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Trial — Judgments — Reasons for judgment — Accused convicted of three offences relating to sexual assault — Whether judge’s reasons on credibility of witnesses in criminal trial sufficient.

The complainant testified to 11 incidents of sexual assault by the accused over a period of years when she was between the ages of 9 and 17. The accused testified. He admitted to having sexual intercourse with the complainant, but claimed that the relationship only became sexual after she was 15 and that the intercourse was consensual. The age for minor consent at the time was 14.

The trial judge found the complainant to be a credible witness and accepted most of her evidence, while rejecting some portions that had been contradicted by other evidence. He discussed the reasons for these conclusions in some detail, noting that the complainant was a child at the time of most of the incidents, and that they had occurred a long time before. Some errors in her evidence were understandable, he concluded. The trial judge largely disbelieved the accused’s evidence, although he found that on some points, it was not challenged. Again he gave reasons, although less extensive than he had in the case of the complainant’s evidence. In the end, the trial judge convicted the accused on three counts.

The Court of Appeal set aside the convictions on two of the three counts. It found the trial judge’s reasons to be deficient on the grounds that the trial judge: (i) did not clearly explain which of the offences were proved by which of the 11 incidents; (ii) failed to mention some of the accused’s evidence; (iii) failed to make general comments about the accused’s evidence; (iv) failed to reconcile his generally positive findings on the complainant’s evidence with the rejection of some of her evidence; and (v) failed to explain why he rejected the accused’s plausible denial of the charges.

Held: The appeal should be allowed and the verdicts of guilty restored.

A trial judge’s reasons serve three main functions: to explain the decision to the parties, to provide public accountability and to permit effective appellate review. Proceeding with deference, the appellate court is to ensure that, read in the context of the record as a whole, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issues before the court. [11] [55]

The three offences of which the accused was convicted found support in the evidence as to a number of the incidents. This gives rise to a reasonable inference that the trial judge accepted some or all of this evidence and grounded the convictions on that evidence. While reasons drawing a precise link between each count on which the accused was found guilty and the particular evidence that the trial judge accepted in support of that count might have been desirable, this omission did not render the reasons deficient. [63]

Nor did the trial judge’s failure to mention some of the accused’s evidence render the reasons for judgment deficient. A trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial. It is clear from the reasons that the trial judge considered the accused’s evidence carefully, and indeed accepted it on some points. In these circumstances, failure to mention some aspects of his evidence does not constitute error. This also applies to the fact that the trial judge failed to make general comments about the accused’s evidence. As helpful as it might be in a given case, a trial judge is not required to summarize specific findings on credibility by issuing a general statement as to “overall” credibility. It is enough that the trial judge has demonstrated a recognition, where applicable, that the witness’s credibility was a live issue. [64]

The trial judge’s alleged failure to reconcile his generally positive findings on the complainant’s evidence with the rejection of some of her evidence did not render the reasons deficient. It is open to the trier of fact to accept some of the evidence of a witness, while rejecting other evidence of the same witness. The trial judge explained that the fact that many of the incidents testified to happened many years before and the fact that the complainant was a child at the time might well explain certain inconsistencies. In fact, he did explain why he rejected some of her evidence. [65]

Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony on specific events was “not seriously challenged”. It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt. [66]

It may have been desirable for the trial judge to explain certain matters more fully. However, the question is whether the reasons, considered in the context of the record and the live issues at trial, failed to disclose a logical connection between the evidence and the verdict sufficient to permit meaningful appeal. The central issue at trial was credibility. It is clear that the trial judge accepted all or sufficient of the complainant’s ample evidence as to the incidents, and was not left with a reasonable doubt on the whole of the evidence or from the contradictory evidence of the accused. From this he concluded that the accused’s guilt had been established beyond a reasonable doubt. When the record is considered as a whole, the basis for the verdict is evident. [67]

Instead of looking for this basis, the Court of Appeal focussed on omitted details and proceeded from a sceptical perspective. Having concluded that the accused’s denial was plausible, it proceeded to examine the case from that perspective, asking whether the reasons disclosed that the trial judge had properly applied the reasonable doubt standard. In doing so, it ignored the trial judge’s unique position to see and hear witnesses, and 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. [68]

Cases Cited

Referred to: R. v. Inhabitants of Audly (1699), 2 Salk. 526, 91 E.R. 448; Swinburne v. David Syme & Co., [1909] V.L.R. 550, aff’d on other grounds, [1910] V.L.R. 539; Macdonald v. The Queen, 1976 CanLII 140 (SCC), [1977] 2 S.C.R. 665; Glennie v. McD. & C. Holdings Ltd., 1935 CanLII 32 (SCC), [1935] S.C.R. 257; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817; United States v. Forness, 125 F.2d 928 (1942); R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514; R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27; R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17; Hill v. Hamilton‑Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, 2007 SCC 41; R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34; R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25; Harper v. The Queen, 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2.

Authors Cited

Broom, Herbert. Constitutional Law Viewed in Relation to Common Law, and Exemplified by Cases, 2nd ed. London: Maxwell, 1885.

Denning, Sir Alfred. The Road to Justice. London: Stevens & Sons, 1955.

Laskin, Bora. “A Judge and His Constituencies” (1976), 7 Man. L.J. 1.

Liston, Mary. “‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law”, in David Dyzenhaus, ed., The Unity of Public Law. Portland, Oregon: Hart, 2004, 113.

Macmillan, Lord. “The Writing of Judgments” (1948), 26 Can. Bar Rev. 491.

Taggart, Michael. “Should Canadian judges be legally required to give reasoned decisions in civil cases” (1983), 33 U.T.L.J. 1.

APPEAL from a judgment of the British Columbia Court of Appeal (Rowles, Donald and Saunders JJ.A.) (2007), 238 B.C.A.C. 176, 393 W.A.C. 176, 218 C.C.C. (3d) 446, [2007] B.C.J. No. 518 (QL), 2007 CarswellBC 547, 2007 BCCA 154, reversing in part a decision of Romilly J., [2004] B.C.J. No. 2896 (QL), 2004 CarswellBC 3313, 2004 BCSC 1679. Appeal allowed.

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 intervener the Attorney General of Ontario.

David C. Marriott, for the intervener the Attorney General of Alberta.

The judgment of the Court was delivered by

1The Chief Justice — This case requires the Court to consider the adequacy of reasons of a trial judge on the credibility of witnesses in a criminal trial. The Court of Appeal faulted the trial judge for not explaining why conflicting evidence failed to raise a reasonable doubt as to the accused’s guilt, and ordered a new trial on the basis that the trial judge’s reasons were insufficient. The Crown appeals to this Court, arguing that the Court of Appeal, under the guise of faulting the sufficiency of the reasons, in fact substituted its own view of the facts without showing error by the trial judge.

2I conclude that the appeal must be allowed. Although his reasons may not have been ideal, the trial judge provided adequate reasons to explain why he reached the verdicts of guilt and to form a basis for appellate review.

I. Factual and Judicial History

3The accused, R.E.M., was charged with various sexual offences involving the complainant, who is the accused’s stepdaughter, and K.A.P., who is the daughter of a family friend. The offences involving the complainant were alleged to have been committed when the complainant was between 9 and 17 years old. When the complainant was 16 years old, she gave birth to a baby who had been conceived with the accused.

4The accused admitted to having sex with his stepdaughter, but claimed that the relationship only became sexual when she was 15 and that the intercourse was consensual. (The age for minor consent at the time was 14.) He denied all the other allegations against him.

5The charges involving K.A.P. were dismissed. The trial focused on the charges involving the accused’s stepdaughter.

6The evidence dealt with 11 incidents relating to 4 counts respecting the complainant. At trial, the accused admitted the essential elements of one offence and denied the three other charges, and was ultimately acquitted of one of those. The trial judge found the complainant to be a very credible witness, that much of her testimony was not seriously challenged, and that she was not prone to embellishment or vindictiveness. The trial judge largely disbelieved the accused’s evidence, although at some points found that it was not seriously challenged. The trial judge did not clearly explain which of the offences were proved by which of the 11 incidents on which evidence had been led ([2004] B.C.J. No. 2896 (QL), 2004 BCSC 1679).

7The British Columbia Court of Appeal (per Saunders J.A.) allowed the appeal with respect to the two unadmitted counts, based on its view that the reasons for judgment did not sufficiently show that the trial judge properly applied the principle of reasonable doubt ((2007), 238 B.C.A.C. 176, 2007 BCCA 154). In particular, the court found that the trial judge failed to mention some of the accused’s evidence, failed to make general comments about the accused’s evidence, and failed to reconcile his generally positive findings on the complainant’s credibility with the rejection of some of her evidence. The court found that the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges placed the reasons for judgment beyond the reach of meaningful appellate review. Finding that conviction was not inevitable and that the accused was entitled to the benefit of any reasonable doubt raised by his evidence, the court concluded that the minimal standard for sufficiency of reasons was not met and ordered a new trial.

II. Analysis

A. When Are Reasons Required?

8The common law historically recognized no legal duty upon a tribunal to disclose its reasons for a decision or to identify what evidence has been believed and what disbelieved: see e.g. R. v. Inhabitants of Audly (1699), 2 Salk. 526, 91 E.R. 448; Swinburne v. David Syme & Co., [1909] V.L.R. 550 (S.C.), aff’d on other grounds, [1910] V.L.R. 539 (H.C. Aust.); Macdonald v. The Queen, 1976 CanLII 140 (SCC), [1977] 2 S.C.R. 665. In the words of a former Chief Justice of this Court, Laskin C.J.:

A recurring question [in] non-jury trials and at the appellate level is whether reasons should be given. There is no legal requirement of this kind, and it is quite unnecessary in a great many cases that come to trial before a Judge alone, and equally unnecessary in a great many cases where the appellate Court’s judgment affirms the trial Judge.

(B. Laskin, “A Judge and His Constituencies” (1976), 7 Man. L.J. 1, at pp. 3-4)

9Judicial reasons of the 19th and early 20th century, when given, tended to be cryptic. One searches in vain for early jurisprudence on the duty to give reasons, for the simple reason, one suspects, that such reasons were not viewed as required unless a statute so provided. This absence of such a duty is undoubtedly related to the long-standing common law principle that an appeal is based on the judgment of the court, not on the reasons the court provides to explain or justify that judgment: see e.g. Glennie v. McD. & C. Holdings Ltd., 1935 CanLII 32 (SCC), [1935] S.C.R. 257, at p. 268.

10The law, however, has evolved. There is no absolute rule that adjudicators must in all circumstances give reasons. In some adjudicative contexts, however, reasons are desirable, and in a few, mandatory. As this Court stated in R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 18, quoting from Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 43 (in the administrative law context), “it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision”. A criminal trial, where the accused’s innocence is at stake, is one such circumstance.

11The authorities establish that reasons for judgment in a criminal trial serve three main functions:

1. Reasons tell the parties affected by the decision why the decision was made. As Lord Denning remarked, on the desirability of giving reasons, “by so doing, [the judge] gives proof that he has heard and considered the evidence and arguments that have been adduced before him on each side: and also that he has not taken extraneous considerations into account”: The Road to Justice (1955), at p. 29. In this way, they attend to the dignity interest of the accused, an interest at the heart of post-World War II jurisprudence: M. Liston, “‘Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law”, in D. Dyzenhaus, ed., The Unity of Public Law (2004), 113, at p. 121. No less important is the function of explaining to the Crown and to the victims of crime why a conviction was or was not entered.

2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus, it has been said that the main object of a judgment “is not only to do but to seem to do justice”: Lord Macmillan, “The Writing of Judgments” (1948), 26 Can. Bar Rev. 491, at p. 491.

3. Reasons permit effective appellate review. A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations “from the lifeless transcript of evidence, with the increased risk of factual error”: M. Taggart, “Should Canadian judges be legally required to give reasoned decisions in civil cases” (1983), 33 U.T.L.J. 1, at p. 7. Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case. Moreover, parties and lawyers rely on reasons in order to decide whether an appeal is warranted and, if so, on what grounds.

12In addition, reasons help ensure fair and accurate decision making; the task of articulating the reasons directs the judge’s attention to the salient issues and lessens the possibility of overlooking or under‑emphasizing important points of fact or law. As one judge has said: “Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper” (United States v. Forness, 125 F.2d 928 (2d Cir. 1942), at p. 942). Finally, reasons are a fundamental means of developing the law uniformly, by providing guidance to future courts in accordance with the principle of stare decisis. Thus, the observation in H. Broom’s Constitutional Law Viewed in Relation to Common Law, and Exemplified by Cases (2nd ed. 1885), at pp. 147-48: “A public statement of the reasons for a judgment is due to the suitors and to the community at large — is essential to the establishment of fixed intelligible rules, and for the development of law as a science.” In all these ways, reasons instantiate the rule of law and support the legitimacy of the judicial system.

13The critical functions of reasons in letting the parties know the reasons for conviction, in providing public accountability and in providing a basis for appeal were emphasized in Sheppard. At the same time, Sheppard acknowledged the constraints of time and the general press of business in criminal trial courts and affirmed that the degree of detail required may vary with the circumstances and the completeness of the record.

14In summary, the law has progressed to the point where it may now be said with confidence that a trial judge on a criminal trial where the accused’s innocence is at stake has a duty to give reasons. The remaining question is more difficult: What, in the context of a particular case, constitutes sufficient reasons?

B. The Test for Sufficient Reasons

15This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.

16It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524).

17These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” — the verdict — and the “why” — the basis for the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

18Explaining the “why” and its logical link to the “what” does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states:

A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [Emphasis added.]

19The judge need not expound on matters that are well settled, uncontroversial or understood and accepted by the parties. This applies to both the law and the evidence. Speaking of the law, Doherty J.A. states in Morrissey, at p. 524:

Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.

20Similarly, the trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.

21This is what is meant by the phrase in Sheppard “the path taken by the trial judge through confused or conflicting evidence” (para. 46). In Sheppard, it was not possible to determine what facts the trial judge had found. Hence, it was not possible to conclude why the trial judge had arrived at what he concluded — the verdict.

22The charge in Sheppard was the theft of two windows. The only evidence connecting the accused to the windows came from an estranged girlfriend who had vowed to “get him”. The trial judge convicted with these formulaic words:

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.

23The reasons said nothing about the facts. They said nothing about the credibility of the witnesses. And they said nothing about the law on the offence. They repeated stock phrases of what a trial judge is expected to do, but did not show that he had done it. There was nothing in the reasons to tell the accused why the trial judge was convicting him. There was nothing to tell the public why the conviction had been entered. And there was nothing to tell the Court of Appeal whether the trial judge’s findings and reasoning were sound. The reasons were clearly inadequate from a functional perspective.

24The Court of Appeal in this case took the phrase “the path taken by the trial judge through confused or conflicting evidence” to mean that the trial judge must detail the precise path that led from disparate pieces of evidence to his conclusions on credibility and guilt. In other words, it insisted on the very “verbalization of the entire process engaged in by the trial judge in reaching a verdict” rejected in Morrissey (p. 525). Sheppard does not require this. The “path” taken by the judge must be clear from the reasons read in the context of the trial. But it is not necessary that the judge describe every landmark along the way.

25The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve — to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. The functional approach does not require more than will accomplish these objectives. Rather, reasons will be inadequate only where their objectives are not attained; otherwise, an appeal does not lie on the ground of insufficiency of reasons. This principle from Sheppard was reiterated thus in R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 31:

The general principle affirmed in Sheppard is that “the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required. The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case” (para. 33). The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision. [Emphasis in original.]

26Braich was decided together with Sheppard. Unlike in Sheppard, the factual record was detailed. Binnie J., writing for the Court, adopted a flexible approach that took into account the fact that inferences could be drawn from that record, and found the reasons to be sufficient.

27The appellate court had found the trial judge’s reasons inadequate because they failed to weigh evidentiary frailties properly in assessing identification evidence. In overturning this ruling, Binnie J. adopted a functional approach. He found that the accused was able to articulate informed disagreement with the trial judge and to formulate an arguable ground of appeal on the facts of the case (paras. 21 and 24). Warning against a formalistic approach, he stated, “[t]he insistence on a ‘demonstration’ of a competent weighing of the frailties elevates the alleged insufficiency of reasons to a stand-alone ground of appeal divorced from the functional test, a broad proposition rejected in Sheppard” (para. 38). He concluded that the trial judge met the functional test for sufficiency of reasons.

28In R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, this Court allowed a Crown appeal of an appellate decision in which an error of law had been found on the basis of insufficiency of reasons. The majority, per Bastarache and Abella JJ., found that the appellate court had ignored the trial judge’s unique position to see and hear witnesses. It 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. Bastarache and Abella JJ. observed, at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

29In Hill v. Hamilton‑Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, 2007 SCC 41, the appellant contended that the trial judge’s reasons were insufficient. This ground of the appeal was rejected. Writing for the majority, I held at para. 101:

In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that less detailed reasons may be required in cases with an extensive evidentiary record, such as the current appeal. On the other hand, reasons are particularly important when “a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue”, as was the case in the decision below: Sheppard, at para. 55. In assessing the adequacy of reasons, it must be remembered that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself”: Sheppard, at para. 26.

30Viewed in the context of the entire record, the trial judge’s reasons sufficiently informed the appellant why the case was decided against him, and permitted meaningful appellant review: Hill, at para. 103.

31More recently, in R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, the Court, per Charron J., rejected a formalistic approach. The case turned on credibility. The trial judge’s reasons failed to articulate the alternatives to be considered in determining reasonable doubt as set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Charron J. stated that only the substance, not the form, of W. (D.) need be captured by the trial judge, then went on to say:

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. [para. 23]

32Charron J. went on to state that where credibility is a determinative issue, deference is in order and intervention will be rare (para. 26). While the reasons must explain why the evidence raised no reasonable doubt, “there is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel” (para. 30).

33The Court found that the trial judge’s reasons fell short of even this flexible standard. There was evidence that the complainant was mentally challenged, with a history of making up stories to get attention, and her testimony had wavered on the core issue of whether the accused had committed the assault in question. The trial judge’s failure to avert to these critical matters left the Court in doubt that he had directed his mind to the central issue of credibility.

34In R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34, the issue was whether the trial judge’s reasons had adequately detailed the path to the verdict. Binnie J., writing for the Court, held that while the reasons “fell well short of the ideal”, they were not so impaired that the Crown’s right of appeal was impaired (para. 27). He stated: “Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue” (para. 20).

35In summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

36Against this background, I turn to a more detailed discussion of four differences between the positions advanced by the defence and the Crown in this case: (1) the degree to which context informs the assessment of the sufficiency of reasons; (2) the degree of detail required in connecting particular pieces of evidence to the verdict or explaining propositions of law; (3) how much need be said on findings of credibility; and (4) the role of appellate courts.

1. Reasons in Context

37As we have seen, the cases confirm that a trial judge’s reasons should not be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions — the “why” for the verdict — are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.

38This important role played by the record was recognized in Macdonald. The majority of the Court explained, per Laskin C.J., at p. 673, that a question of law will only be raised if an examination of the record indicates that “there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict”; mere failure to give reasons, without more, does not raise a question of law.

39In Sheppard, Binnie J. affirmed the need to look at the record: “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” (para. 46). In point 2 of his summary (at para. 55), he stated: “Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record.” Similarly, with respect to the need for lawyers to know the basis of the judgment for appellate purposes, he stated at point 3, after saying that they may require reasons: “On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.” Throughout the reasons in Sheppard, Binnie J. emphasizes the functional and relative nature of the question of whether a trial judge’s reasons for judgment are adequate.

40Hill, citing Sheppard, confirms that “the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable” (para. 101).

41The contextual approach to assessing the sufficiency of reasons recognizes that the trial process, including the trial judge’s reasons, is a dynamic process, in which the evidence, counsel and the judge play different but imbricated roles. Whether the trial judge’s reasons for judgment are sufficient must be judged in the full context of how the trial has unfolded. The question is whether the reasons, viewed in light of the record and counsel’s submissions on the live issues presented by the case, explain why the decision was reached, by establishing a logical connection between the evidence and the law on the one hand, and the verdict on the other.

2. The Degree of Detail Required

42In this case, the Court of Appeal faulted the trial judge principally for not giving sufficiently precise reasons for accepting the complainant’s evidence and rejecting the accused’s evidence, as well as for not stating precisely what evidence he accepted and rejected in respect of each of the counts on which he found the accused guilty. Similarly, in Dinardo, the reasons of the trial judge were criticized for failing to engage in a detailed discussion of the process of assessing reasonable doubt recommended in W. (D.). In both cases, the issue was how much detail the trial judge’s reasons are required to provide — in this case on the facts, in Dinardo on the law.

43The answer is provided in Dinardo and Walker — what is required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter. Provided this is done, detailed recitations of evidence or the law are not required.

44The degree of detail required may vary with the circumstances. Less detailed reasons may be required in cases where the basis of the trial judge’s decision is apparent from the record, even without being articulated. More detail may be required where the trial judge is called upon “to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue”: Sheppard, at para. 55, point 6.

45Just as it is reasonable to infer that the trial judge seized the import of the evidence, it is generally reasonable to infer that the trial judge understands the basic principles of criminal law at issue in the trial. Indeed, for this reason it has repeatedly been held that “[t]rial judges are presumed to know the law with which they work day in and day out”: R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 664, where the Court rejected the notion of a positive duty on trial judges to demonstrate that they have appreciated every aspect of the relevant evidence. The trial judge is not required to recite pages of “boilerplate” or review well-settled authorities in detail, and failure to do so is not an error of law. As Binnie J. pointed out in Sheppard, at para. 55, point 7:

Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge’s reasons provide the equivalent of a jury instruction.

46Similarly, in Dinardo, the Court, per Charron J., held that the trial judge was not required to recite the rule set out in W. (D.), provided the reasons demonstrated he had seized the substance of the critical issue of a reasonable doubt in the context of a credibility assessment.

47This said, the presumption that trial judges are presumed to know the law with which they work on a day-in day-out basis does not negate the need for reasons to show that the law is correctly applied in the particular case (Sheppard, at para. 55, point 9), nor the need for reasons to deal with “troublesome principles of unsettled law” (Sheppard, at para. 55, point 6).

3. Findings on Credibility

48The sufficiency of reasons on findings of credibility — the issue in this case — merits specific comment. The Court tackled this issue in Gagnon, setting aside an appellate decision that had ruled that the trial judge’s reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that “[a]ssessing credibility is not a science.” They went on to state that it may be difficult for a trial judge “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”, and warned against appellate courts ignoring the trial judge’s unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge’s.

49While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.

50What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo, where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. “In a case that turns on credibility . . . the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt” (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo, at para. 30.

51The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial. The factors supporting or detracting from credibility may be clear from the record. In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

4. The Role of Appellate Courts in Assessing the Sufficiency of Reasons

52In Sheppard, the Court, per Binnie J. enunciated this “simple underlying rule”: “[I]f, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law [under s. 686 of the Criminal Code] has been committed” (para. 28).

53However, the Court in Sheppard also stated: “The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26). To justify appellate intervention, the Court makes clear, there must be a functional failing in the reasons. More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review.

54An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge’s perceptions of the facts. As decided in H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, and stated in Gagnon (at para. 20), “in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected”. It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention. But the appellate court’s point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law.

55The 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.

56If 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 (SCC), [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.”

57Appellate 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), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law.

5. Application of the Principles to This Case

58This was a case that turned on credibility. The complainant testified to 11 incidents of sexual assault by the accused, over a period of years when she was a child, between the ages of 9 and 17. The accused testified. He admitted to having sexual intercourse with the complainant, but claimed that the relationship only became sexual after she was 15 and that the intercourse was consensual.

59The trial judge found the complainant to be a credible witness and accepted most of her evidence, while rejecting some portions that had been contradicted by other evidence. He discussed the reasons for these conclusions in some detail, noting that the complainant was a child at the time of most of the incidents, and that they had occurred a long time before. Some errors in her evidence were understandable, he concluded.

60The trial judge largely disbelieved the accused’s evidence, although he found that on some points, it was not challenged. Again he gave reasons, although less extensive than he had in the case of the complainant’s evidence.

61In summary, the reasons for judgment show that on most points, the trial judge accepted the evidence of the complainant and rejected that of the accused. This said, there were aspects of the complainant’s evidence that he did not accept and aspects of the accused’s evidence that he accepted. In the end, the trial judge convicted the accused of three offences: (1) having intercourse with a minor; (2) indecent assault; and (3) having illicit intercourse with his stepdaughter. He acquitted the accused on the count of gross indecency.

62The Court of Appeal found the trial judge’s reasons to be deficient on the following grounds:

(1) The trial judge did not clearly explain which of the offences were proved by which of the 11 incidents on which evidence had been led;

(2) The trial judge failed to mention some of the accused’s evidence;

(3) The trial judge failed to make general comments about the accused’s evidence;

(4) The trial judge failed to reconcile his generally positive findings on the complainant’s evidence with the rejection of some of her evidence;

(5) The trial judge failed to explain why he rejected the accused’s plausible denial of the charges.

63The trial judge’s failure to clearly explain which of the three offences were grounded by which of the incidents must be considered in the context of the record as a whole. The three offences of which the accused was convicted found support in the evidence as to a number of the incidents. This gives rise to a reasonable inference that the trial judge accepted some or all of this evidence and grounded the convictions on that evidence. While reasons drawing a precise link between each count on which the accused was found guilty and the particular evidence that the trial judge accepted in support of that count might have been desirable, this omission did not render the reasons deficient on this record, as discussed more fully below.

64Nor did the trial judge’s failure to mention some of the accused’s evidence render the reasons for judgment deficient. The foregoing discussion of the law establishes that a trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial. It is clear from the reasons that the trial judge considered the accused’s evidence carefully, and indeed accepted it on some points. In these circumstances, failure to mention some aspects of his evidence does not constitute error. This also applies to the third objection, that the trial judge failed to make general comments about the accused’s evidence. As helpful as it might be in a given case, a trial judge is not required to summarize specific findings on credibility by issuing a general statement as to “overall” credibility. It is enough that the trial judge has demonstrated a recognition, where applicable, that the witness’s credibility was a live issue.

65The trial judge’s alleged failure to reconcile his generally positive findings on the complainant’s evidence with the rejection of some of her evidence did not render the reasons deficient. As juries are routinely instructed, it is open to the trier of fact to accept some of the evidence of a witness, while rejecting other evidence of the same witness. The trial judge explained that the fact that many of the incidents testified to happened many years before and the fact that the complainant was a child at the time might well explain certain inconsistencies. In fact, he did explain why he rejected some of her evidence.

66Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony on specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt.

67It may have been desirable for the trial judge to explain certain matters more fully. In particular, it would have been preferable to relate the charges on which the accused was found guilty to the evidence of the specific incidents disclosed by the evidence. Given the trial judge’s mixed findings on credibility, the relationship between the 11 incidents to the convictions may not have been totally clear. However, on the law enunciated above, the question is whether the reasons, considered in the context of the record and the live issues at trial, failed to disclose a logical connection between the evidence and the verdict sufficient to permit meaningful appeal. The central issue at trial was credibility. It is clear that the trial judge accepted all or sufficient of the complainant’s ample evidence as to the incidents, and was not left with a reasonable doubt on the whole of the evidence or from the contradictory evidence of the accused. From this, he concluded that the accused’s guilt had been established beyond a reasonable doubt. When the record is considered as a whole, the basis for the verdict is evident.

68Instead of looking for this basis, the Court of Appeal focussed on omitted details and proceeded from a sceptical perspective. Having concluded that the accused’s denial was plausible, it proceeded to examine the case from that perspective, asking whether the reasons disclosed that the trial judge had properly applied the reasonable doubt standard. In doing so, it fell into the trap identified in Gagnon of ignoring the trial judge’s unique position to see and hear witnesses, and 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.

III. Conclusion

69I would allow the appeal and restore the verdicts of guilty.