ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 35/09
DATE: 20120217
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – DANIEL LIPOVETSKY Appellant
David A. Mitchell , for the Crown/Respondent
G. Jonathan Lapid , for the Appellant
HEARD: February 16, 2012
KELLY J.
REASONS FOR DECISION
[ 1 ] The Appellant was charged with impaired operation of a motor vehicle and “over 80”. The Appellant brought an application pursuant to s. 11(b) of the Charter which was denied. Following the trial, Sparrow J. convicted the Appellant on both counts.
[ 2 ] The Appellant has raised a number of issues on this appeal but both Counsel agree that the reasons for judgment regarding the s. 11(b) argument are insufficient. No one argued strenuously that I should now conduct the s. 11(b) analysis. Counsel simply submitted that the option was available for me to do so. I declined and accordingly, the appeal is allowed.
[ 3 ] What follows are my reasons.
The Sufficiency of Reasons
[ 4 ] Following argument of the s. 11(b) application and on September 2, 2008, the trial judge stated as follows:
Okay, thank you. All right, it is 2:55. I have had a lot of time, today to reflect on this. I read the materials before I came into court, and due to the lateness of the hour, I am not going to give reasons today, but I am going to dismiss the application, with reasons to follow. I will focus on the fact that the delay is not that far outside the guidelines in Morin and the fact that there was illness of a child involved here, and that a lot of the prejudice flowed from being charged and the possibility of being convicted, rather than delay, but reasons will follow. All right, so the 11(b) is dismissed.
[ 5 ] Despite the passage of almost 3.5 years, the reasons of Sparrow J. have not been produced as promised.
[ 6 ] Based on the reasons for decision as provided, I am unable to determine whether the trial judge was correct in her characterization of time periods because no analysis was provided. I am also unable to determine whether the trial judge made a palpable and overriding error with respect to the underlying findings of fact regarding prejudice, again because no analysis was provided [1] .
[ 7 ] Trial judges have a duty to give “reasoned reasons” for their decisions. There are three rationales for this:
a. Judges owe an obligation to the public to explain their decisions;
b. Judges owe an obligation to the losing party to explain why they lost; and
c. Judges owe an obligation to counsel and appeal courts to make appellate review of their decisions meaningful [2] .
[ 8 ] The short reasons provided by Sparrow J. are not “reasoned” and they do not address the rationales set out above. No member of the public would understand how Sparrow J. came to her decision and certainly, the Appellant does not know why the application was denied. Lastly, the reasons, as articulated by the trial judge on September 2, 2008 do not allow for this court to make a review of the decision meaningful.
[ 9 ] I am of the view that it would be inappropriate for me to intervene and provide reasons. The trial judge had the benefit of hearing the evidence of the Appellant on this issue – a benefit that I do not have.
Conclusion
[ 10 ] For the abovementioned reasons, the appeal is allowed and this matter is remitted back to the trial court.
Kelly J.
Released: February 17, 2012
COURT FILE NO.: SCA 69/11
DATE: 20120217
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – DANIEL LIPOVETSKY Respondent
REASONS FOR DECISION Kelly J.
Released: February 17, 2012
[1] See: R. v. Schertzer , 2009 ONCA 742 , [2009] O.J. No. 4425 (C.A.) at para. 71
[2] See: R. v. M. (Y.) 2004 , [2004] O.J. No. 2001 (Ont. C.A.)