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SUPREME COURT OF CANADA
Citation: R. v. Teskey, [2007] 2 S.C.R. 267, 2007 SCC 25 |
Date: 20070607 Docket: 31544 |
Between:
Leo Matthew Teskey
Appellant
and
Her Majesty The Queen
Respondent
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment: (paras. 1 to 24)
Dissenting Reasons: (paras. 25 to 52)
|
Charron J. (McLachlin C.J. and Binnie, LeBel, Fish and Rothstein JJ. concurring)
Abella J. (Bastarache and Deschamps JJ. concurring) |
______________________________
r. v. teskey
Leo Matthew Teskey Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Teskey
Neutral citation: 2007 SCC 25.
File No.: 31544.
2007: February 22; 2007: June 7.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal of alberta
Criminal law — Trial — Judgments — Trial judge delivering extensive written reasons 11 months after guilty verdicts rendered — Whether Court of Appeal erred in considering written reasons when deciding accused’s appeal from convictions — Whether reasonable person would apprehend that trial judge’s written reasons did not reflect real basis for convictions.
The accused was charged with aggravated assault, break and enter, and possession of stolen property. The evidence given during the five‑day trial was complex, almost entirely circumstantial and contained some contradictions. The trial judge reserved his decision and, four months later, after repeated adjournments, convicted the accused on all charges, in each case essentially saying only that the Crown had proved all the essential elements of the offence beyond a reasonable doubt. The trial judge also mentioned his intention to issue written reasons, which were eventually delivered, more than 11 months after the verdicts and long after the accused’s notice of appeal had been filed. The Court of Appeal found that the oral reasons did not pass the test of sufficiency, but a majority applied the presumption of regularity, considered the extensive written reasons and upheld the convictions. The dissenting judge would not have considered the written reasons. The accused appealed to this Court as of right and the only issue was whether the Court of Appeal should have considered the trial judge’s written reasons.
Held (Bastarache, Deschamps and Abella JJ. dissenting): The appeal should be allowed, the convictions set aside and a new trial ordered.
Per McLachlin C.J. and Binnie, LeBel, Fish, Charron and Rothstein JJ.: Although not precluded from announcing a verdict with “reasons to follow”, a trial judge in all cases should be mindful of the importance that justice not only be done but also that it appear to be done. Reasons rendered long after a verdict, particularly where it is apparent that they were crafted after the announcement of the verdict, may cause a reasonable person to apprehend that the trial judge engaged in result‑driven reasoning. The necessary link between the verdict and the reasons will not be broken, however, on every occasion where there is a delay in rendering reasons after the announcement of the verdict. Since trial judges benefit from a presumption of integrity, which in turn encompasses the notion of impartiality, the reasons are presumed to reflect the reasoning underlying the decision. Fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. While the presumption can be displaced, the onus is on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after‑the‑fact justification of the verdict rather than an articulation of the reasoning that led to it. Here, the written reasons should not have been considered by the Court of Appeal. While the written reasons do not appear to have been crafted to answer points raised in the appeal, in the particular circumstances of this case, a reasonable person would apprehend that these reasons, delivered more than 11 months after the verdict was rendered, did not reflect the real basis for the convictions. Without this requisite link, the written reasons provide no opportunity for meaningful appellate review of the correctness of the decision. However, the delay in rendering reasons, in and of itself, does not give rise to this apprehension. In this case, it is the combination of several factors that constitutes cogent evidence sufficient to rebut the presumption of integrity and impartiality. [2] [17‑23]
Per Bastarache, Deschamps and Abella JJ. (dissenting): The presumption of judicial integrity acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold. This includes not only a presumption of impartiality, but also of legal knowledge. The presumption of integrity is rebuttable only by cogent evidence. The threshold for displacing the presumption is high: it must be demonstrated that a reasonably informed person would be satisfied that there was a real likelihood that the trial judge had not complied with the judicial oath of office in the manner and timing of the issuance of the reasons. The presumption is not to insulate decisions from judicial review but to ensure that inappropriate assumptions, such as bias, are not idiosyncratically factored into the review. [28-29] [34] [40]
A delay, either in reaching a result or in explaining it, would not lead a reasonably informed observer to conclude that the judge had disregarded the oath of office and would not, without more, represent an error of law justifying ignoring either the result or the reasons. Issuing the reasons after a verdict does not mean that the verdict was not thought through before it was delivered. Reasons explain what a judge has decided to do and should be accepted as being honest reflections of that decision, whether delivered with or after the result, unless their content reflects the absence of judicial integrity. Inordinate delay may result in critical comment by a reviewing court but should not result in a refusal even to consider the reasons. Such an approach would do a greater disservice to the public perception of the integrity of the system than an undesirable delay. Here, given the complexity of the case, the time taken to reach the verdicts and to articulate reasons for judgment, even when considered with the other surrounding factors identified by the majority, did not represent the level of cogency necessary to displace the presumption of integrity. The reasons were responsive to the facts and issues at trial and were entitled to be reviewed on their merits. [40] [44] [46] [47] [50] [51]
Cases Cited
By Charron J.
Referred to: R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; Crocker v. Sipus (1992), 57 O.A.C. 310; R. v. S. (R.D.), [1997] 3 S.C.R. 484.
By Abella J. (dissenting)
R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; Robbie the Pict v. Her Majesty’s Advocate, [2003] ScotHC 12; Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45; R. v. Elrick, [1983] O.J. No. 515 (QL); R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50; R. v. Lin, [1995] B.C.J. No. 982 (QL); R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Burns, [1994] 1 S.C.R. 656.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, s. 726.
APPEAL from a judgment of the Alberta Court of Appeal (Hunt, Berger and Costigan JJ.A.) (2006), 60 Alta. L.R. (4th) 260, 391 A.R. 155, 377 W.A.C. 155, 210 C.C.C. (3d) 36, [2006] A.J. No. 723 (QL), 2006 ABCA 191, upholding the accused’s convictions. Appeal allowed, Bastarache, Deschamps and Abella JJ. dissenting.
Deborah R. Hatch, for the appellant.
James A. Bowron, for the respondent.
The judgment of McLachlin C.J. and Binnie, LeBel, Fish, Charron and Rothstein JJ. was delivered by
Charron J. —
1. Overview
1 The sole question before this Court is whether, in deciding the appellant’s appeal from his convictions, the Court of Appeal for Alberta should have considered the extensive written reasons of the trial judge, issued long after the verdicts had been announced and the Notice of Appeal had been filed. For joint reasons by Hunt and Costigan JJ.A., the court considered the trial judge’s written reasons and dismissed the appeal. Berger J.A., dissenting, would not have considered the written reasons and accordingly would have allowed the appeal ((2006), 60 Alta. L.R. (4th) 260).
2 In the particular circumstances of this case, I conclude that a reasonable person would apprehend that the trial judge’s written reasons, delivered more than 11 months after the verdict was rendered, did not reflect the real basis for the convictions. Without this requisite link between the verdict and the reasoning that led to that verdict, the reasons provide no opportunity for meaningful appellate review of the correctness of the decision. Hence, the written reasons should not have been considered on appeal. It is not disputed that the oral reasons rendered at the time of the verdict do not pass the test of sufficiency set out by this Court in R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26. I would therefore allow the appeal, set aside the convictions and order a new trial.
2. Background
3 Leo Matthew Teskey was charged with aggravated assault, break and enter, and possession of stolen property. Following a five-day trial ending on October 19, 2001, the trial judge reserved his decision and adjourned the case to November 9, 2001. Berger J.A., in his dissenting reasons, provides the following useful summary of the evidence and the trial judge’s factual findings:
On the day of the assault, one Jason Adams, a resident of the apartment building, observed a man with a bicycle sleeping in the second floor hallway. He caught quick glimpses of the man on three occasions between 6.15 a.m. and 6.30 a.m. Shortly before 7.00 a.m., another resident observed the sleeping man and informed the victim. Between 7.00 a.m. and 7.30 a.m., Mr. Adams' wife overheard the victim talking with a male whose voice she did not recognize. She then heard a noise she believed to be a bicycle going down the flight of stairs. At approximately 10.30 a.m., the letter carrier found the victim at the bottom of the stairwell on the main floor of the apartment building. He had been badly beaten.
The sole identification evidence was that given by Mr. Adams. In a first photo line-up (November 28, 2000), he identified someone other than the Appellant as the person who resembled the man sleeping in the hallway (A.B. 29/35-30/5; E23-E25). A second photo line-up was prepared which included the photo of the Appellant (December 14, 2000), but did not include a photograph of the person previously identified. In addition, the Appellant’s photograph was one of three that appeared in both the first and second line-up (A.B. E28-E30). The witness testified that the Appellant’s face as depicted in the photo “looked similar to the face [he saw] in the stairwell. He added that “minus the bruise and the shorter hair . . . the face looks very familiar.” (A.B. 31/27-32/15) The Appellant argued that the second photo line-up was flawed due to the manner in which the Appellant’s photo stood out as compared to a number of the surrounding pictures. In addition, Mr. Adams was unable to positively identify the Appellant in Court.
The trial judge recognized that the identification of the Appellant by Adams was “the cornerstone of the Crown’s case” (A.B. F29, para. 54). He found that there had been no deliberate attempt on the part of the police to compromise the photo identification. He observed, however, that the recited flaws did tend to reduce the reliability of the identification evidence. Nonetheless, he took Mr. Adams’ evidence into account and concluded that the Appellant was the man that Mr. Adams saw sleeping in the hallway.
The Appellant was in possession of or had pawned a number of items said to be missing from the victim’s apartment. The evidence relied upon by the Crown to identify the property was equivocal. The victim’s wife was unable to positively identify the property. By way of illustration, she explained that a Fuji camera which she was asked to identify “could have been” in the victim’s office. Her difficulty was, as she put it, “I’m afraid all cameras look the same to me.” Her testimony regarding a video recorder was equally uncertain. She was only able to say that “[s]ometimes Dougald used to mark the backs. There is no way that I can say positively that this is the one but there was one similar in the bedroom.” (A.B. 239/10-12) Clothing said to have been in the victim’s car was found in the Appellant’s residence. The victim’s wife did identify some clothing as belonging to her and her husband, but it had earlier been loaded into their car with the intention of giving it to the Salvation Army. She could not say if that had been done. (A.B. 224/44 - 226/9) The victim's wife was asked to identify a number of cassettes said to belong to the victim. She could only say that her husband had a number of the same titles. (A.B. 238/4-41) The Appellant’s fingerprint was found on a jigsaw puzzle box which had been left unattended in the hallway of the building for about a week or two before this incident. (A.B. 22/28-41) No one could testify when the fingerprint came to be on the box, or how long it had been there.
Of critical importance, the position of the defence at trial was that the Appellant may have stolen the puzzle box, but was not the assailant.
4 As described by Hunt and Costigan JJ.A., “[t]he lengthy evidence was complex, almost entirely circumstantial and contained some contradictions. It cried out for analysis.” (para. 15) Transcripts were ordered and the trial judge received them during the week of November 5, 2001. On the scheduled return date of November 9, 2001, the trial judge adjourned the matter for decision to November 20, then to December 11, December 21, 2001, and January 25, 2002, indicating each time that he was reviewing the matter but had not yet been able to reach a decision. From comments that he made on each appearance it is clear that the trial judge was struggling with the verdicts: see the excerpts reproduced by Berger J.A., at paras. 58-60 of his reasons.
5 On February 22, 2002, the trial judge, in brief oral reasons, convicted the accused on all three charges, in each case essentially saying only that the Crown had proved all the essential elements of the offence beyond a reasonable doubt. Immediately after announcing the verdicts, the trial judge said the following:
I just realized that perhaps I did do something in error in that before I entered the conviction, Mr. Teskey, I did not ask you if you had anything to say to the court, and I will give you that opportunity now.
6 The trial judge then invited Mr. Teskey to address him, adding the following:
Mr. Teskey, clearly, on whatever you say, I will reconsider what I have just said and then advise you if I am going to change anything, so I welcome you to address the court.
7 Mr. Teskey had nothing to say to the court and the trial judge concluded by announcing his intention to issue written reasons “within a short period of time”. The Crown then advised the court that it was going to bring an application to have Mr. Teskey declared a dangerous offender.
8 I pause here to say that the trial judge, in asking Mr. Teskey if he had anything to say, appears to be mistakenly referring to s. 726 of the Criminal Code, R.S.C. 1985, c. C-46, which requires a trial judge to ask an accused whether he has anything to say prior to the delivery of the sentence. In my view, this momentary lapse, in and of itself, is of no consequence. However, as I will explain, the trial judge’s expressed willingness to reconsider the verdict, immediately after it has been rendered, contributes to the overall appearance that the process of deliberation was still ongoing.
9 On March 22, 2002, Mr. Teskey filed a Notice of Appeal listing 11 grounds of appeal, including whether “the number of adjournments required by the trial judge to determine guilt demonstrates reasonable doubt”. Other grounds were concerned mainly with the insufficiency of the evidence and the question of reasonable doubt.
10 Extensive written reasons were eventually delivered (2003 CarswellAlta 2038), more than 11 months after the announcement of the verdicts, and within days of the Court of Appeal’s adjournment of the appeal from convictions and direction that the trial judge proceed to sentencing “with deliberate speed”. In the written reasons, the trial judge provided a detailed explanation for the repeated adjournments that preceded the announcement of the verdicts. He also referred at length to the various adjournments on the subsequent dangerous offender application, up to the release of his reasons on January 29, 2003. However, he made no mention of counsel’s repeated requests for his written reasons and offered no explanation for the post-verdict delay in releasing them.
11 Mr. Teskey’s appeal from convictions was heard by the Court of Appeal of Alberta on January 12, 2006. The court was unanimous in finding that the trial judge’s oral reasons did not pass the test of sufficiency, as set out by this Court in Sheppard. The justices on appeal were divided, however, on the question whether the court, in determining Mr. Teskey’s appeal from convictions, should consider the written reasons of the trial judge. Hunt and Costigan JJ.A. held that, viewed in their entirety, the reasons did not appear to be “written simply to answer points raised in the notice of appeal” (para. 36). On the question whether the circumstances surrounding their delivery gave rise to an apprehension of unfairness, the majority found the evidence, at best, to be equivocal. Applying the “presumption of regularity”, they concluded that “[t]he provision of written reasons was no more than the tardy performance of the trial judge’s declared intention to provide reasons in compliance with the obligation imposed by Sheppard” (para. 40). The majority therefore considered the written reasons and dismissed the appeal from convictions.
12 Berger J.A., in dissent, would not have considered the written reasons. In his view, the appearance of fairness could not be maintained on the facts of this case. He found that the extreme delay in issuing reasons that had been promised “within a short period of time”, the relative brevity of the trial, the nature of the evidence, and the contents of the reasons in the face of an intervening appeal that had progressed to an initial hearing before the reasons were issued, all combined to create an apprehension that the reasons were meant to respond to some of the points raised on appeal. In addition, he held that the inordinate delay suggested result-driven reasoning and “that a reasonable person would perceive that the conclusions reached months earlier were not at that time supported by the reasons now proffered” (para. 74). Without the requisite link between the decision taken and the reasons that led to that decision, the accused’s right to a meaningful appeal was effectively thwarted. Berger J.A. would therefore have ordered a new trial.
13 Mr. Teskey appeals to this Court as of right.
3. Analysis
14 The discussion in Sheppard about the requirement and the purpose of giving reasons need not be repeated at length here. No one disputes that, in the circumstances of this case, it was incumbent upon the trial judge to give reasons to justify and explain the verdicts of guilt. This was particularly important given the relatively complex and circumstantial nature of the evidence presented against Mr. Teskey. Mr. Teskey was entitled to know why he was convicted. The reasons were also necessary to inform the grounds of his appeal from conviction properly. Interested members of the public were also entitled to see for themselves whether justice was done here. Furthermore, in the particular context of the appeal, the reasons were necessary to provide a meaningful review of the correctness of the decision.
15 It is clear that the oral reasons given at the time of the verdicts do not meet the standard set out in Sheppard. It is equally clear that the extensive written reasons that followed do — provided that they reflect the reasoning that led the trial judge to the verdicts. Without that link, the purpose of giving reasons is defeated and their consideration do not contribute to a meaningful appellate review. The issue arises in this case because of the lack of concomitance between the announcement of the verdicts and the delivery of the written reasons. Had the verdicts been announced only at the time the written reasons were delivered, even — as here — more than 14 months after the conclusion of the evidence, the requisite link between the decision and reasons that led to it could not be questioned. Of course, inordinate delay in rendering a verdict can give rise to other concerns, but not to the issue which occupies us on this appeal.
16 A judge is not precluded from announcing a verdict with “reasons to follow”. In the context of a civil case, Arbour J.A. (as she then was) aptly stated the following in Crocker v. Sipus (1992), 57 O.A.C. 310 (C.A.), at para. 15:
The needs of justice in a given case may be better served by an announcement of the disposition of the matter as soon as the deliberation process is completed but before full written reasons can be made available to the parties. The mere filing of a notice of appeal after the disposition has been announced does not bar the consideration on appeal of the reasons released subsequently.
17 The same principles apply in a criminal case. For example, it is often necessary in the interests of achieving trial efficiency for a trial judge to announce promptly the disposition on an evidentiary ruling or on a Charter motion, with reasons to follow at a later date. In particular circumstances, there may also be good reason for announcing the verdict in a criminal case prior to delivering the reasons that led to it. For example, the prompt delivery of a verdict of acquittal may allow an accused to be immediately released from custody. Or it may be desirable to announce a verdict of guilty at the conclusion of the hearing so as to secure an earlier date in the court’s schedule for the subsequent sentence proceedings. However, in all cases, a trial judge should be mindful of the importance that justice not only be done but that it appear to be done. The circumstances of this case exemplify the kind of issues that can arise when the announcement of the verdict is divorced from the delivery of the reasons that led to it.
18 Reasons rendered long after a verdict, particularly where it is apparent that they were entirely crafted after the announcement of the verdict, may cause a reasonable person to apprehend that the trial judge may not have reviewed and considered the evidence with an open mind as he or she is duty-bound to do but, rather, that the judge has engaged in result-driven reasoning. In other words, having already announced the verdict, particularly a verdict of guilt, a question arises whether the post-decision review and analysis of the evidence was done, even subconsciously, with the view of defending the verdict rather than arriving at it. It is most important in a criminal case to guard against any result-driven consideration of the evidence because the accused is presumed innocent and entitled to the benefit of any reasonable doubt. A reasonable doubt is not always obvious. Its presence may be far more subtle and only discernible through the eyes of the person who keeps an open mind. It is in this sense that the trial judge who appears to have already committed to a verdict of guilt before completing the necessary analysis of the evidence may cause a reasonable person to apprehend that he or she has not kept an open mind. Further, if an appeal from the verdict has been launched, as here, and the reasons deal with certain issues raised on appeal, this may create the appearance that the trial judge is advocating a particular result rather than articulating the reasons that led him or her to the decision.
19 I am not suggesting that the necessary link between the verdict and the reasons that led to it will be broken whenever there is a delay in rendering reasons after the announcement of the verdict. Trial judges benefit from a presumption of integrity, which in turn encompasses the notion of impartiality. (I take it from reading their reasons as a whole that this is what the majority of the Court of Appeal had in mind when they referred to the presumption of “regularity”, the latter applying rather to procedural or administrative matters.) Hence, the reasons proffered by the trial judge in support of his decision are presumed to reflect the reasoning that led him to his decision.
20 The notion of judicial integrity was discussed at length by this Court in R. v. S. (R.D.), [1997] 3 S.C.R. 484. It encompasses the expectation that judges will strive to overcome personal bias and partiality and carry out the oath of their office to the best of their ability. Impartiality was described as follows by Cory J. (at paras. 104-5):
. . . impartiality can be described — perhaps somewhat inexactly — as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.
In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues.
The judge’s impartiality is essential to achieve trial fairness.
21 As reiterated in S. (R.D.), fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after‑the-fact justification of the verdict rather than an articulation of the reasoning that led to it.
22 In this case, I agree with the majority of the Court of Appeal that the reasons do not appear to have been crafted to answer points raised in the appeal, either in whole or in part. The reasons do not address one of the four grounds of appeal raised in the factum. While the trial judge’s reasons respond generally to the accused’s other arguments on appeal about whether there were grounds for a reasonable doubt or whether the verdicts were unreasonable, as noted by Hunt and Costigan JJ.A., given the nature of the case almost any reasons would have had this effect.
23 However, the fact that the reasons do not appear written in answer to the accused’s appeal does not answer the broader question whether a reasonable person would apprehend that the written reasons are in effect an after-the-fact justification for the verdicts rather than the articulation of the reasoning that led to the decision. This question was not considered by the majority. On this issue, I agree with the conclusion reached by Berger J.A., in dissent, that the court could not reasonably be confident that the written reasons, delivered more than 11 months after the announcement of the verdicts of guilt, reflected the reasoning that led the trial judge to his decision. However, unlike Berger J.A., I am of the view that delay in rendering reasons, in and of itself, does not give rise to this apprehension. With respect, Abella J.’s analysis also appears entirely focused on the timing of the reasons. If the only factor in this case were the delay in the post-verdict delivery of the reasons, I would take no issue with her conclusion. In this case, however, it is the combination of the following factors that constitutes cogent evidence sufficient to rebut the presumption of integrity and impartiality and which amply supports Berger J.A.’s conclusion:
· the trial judge’s obvious difficulty in arriving at a verdict in the months following the completion of the evidence;
· the absolutely bare declaration of guilt without any indication of the underlying reasoning;
· the trial judge’s expressed willingness to reconsider the verdicts immediately after their announcement;
· the nature of the evidence that called for a detailed consideration and analysis before any verdict could be reached;
· the failure of the trial judge to respond to repeated requests from counsel to give reasons;
· the contents of the reasons referring to events long after the announcement of the verdict suggesting that they were crafted post-decision;
· the inordinate delay in delivering the reasons coupled with the absence of any indication that his reasons were ready at any time during the 11 months that followed or that the trial judge had purposely deferred their issuance pending disposition of the dangerous offender application.
4. Disposition
24 For these reasons, I would allow the appeal, set aside the convictions and order a new trial.
The reasons of Bastarache, Deschamps and Abella JJ. were delivered by
25 Abella j. — After a five-day trial involving over a dozen witnesses, Leo Matthew Teskey was convicted of aggravated assault, break and enter and possession of stolen property on February 22, 2002. On January 29, 2003, the trial judge issued written reasons (2003 CarswellAlta 2038), and, on February 28, 2003, found Teskey to be a dangerous offender.
26 The novel issue in this appeal is whether a trial judge’s written reasons ought to be disregarded in circumstances which, in my view, amount essentially to extensive delay. I am, with great respect, concerned that this case, although it is being decided by the majority on its own facts, may set a regrettable precedent that will not only inhibit judges from a common practice of giving a result with reasons to follow, but also introduce uncertainty about how long a particular delay needs to be before it can be said that those reasons have lost the right to be reviewed. For the reasons that follow, the trial judge’s reasons in this case were, it seems to me, entitled to appellate review and not, by virtue of their timing, unworthy of substantive scrutiny.
27 I agree with Charron J. in many respects. In particular, I agree with her conclusions that:
• the trial judge’s attempted correction of what he perceived to be an error in finding Teskey guilty before giving him an opportunity to make a statement, was a “momentary lapse, in and of itself, . . . of no consequence”;
• the extensive written reasons meet the standard in R. v. Sheppard, [2002] 1 S.C.R. 869, if “they reflect the reasoning that led the trial judge to the verdicts”;
• a judge is not precluded from announcing a verdict with “reasons to follow”;
• the trial judge’s reasons were not specifically crafted to respond to the Notice of Appeal; and
• trial judges benefit from a presumption of integrity and impartiality.
28 Of utmost importance to the resolution of this appeal, in my view, is the existence of a presumption of integrity, rebuttable only by cogent evidence. The high threshold for displacing the presumption that a judge is acting with integrity and in accordance with his or her oath of office, seeks to balance two significant public interests, both related to maintaining confidence in the administration of justice: the right of judges to be presumed to be acting with integrity and the right of litigants to challenge judges when their conduct gives rise to a reasonable apprehension of impropriety.
29 The presumption of integrity acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold. This includes not only a presumption — and duty — of impartiality but also of legal knowledge. This aspect of the presumption, namely, that judges are presumed to know and act in accordance with their legal responsibilities, is of particular significance in this appeal.
30 The foundation for the presumption was summarized in Robbie the Pict v. Her Majesty’s Advocate, [2003] ScotHC 12, as follows at para. 8:
Every judge is bound, both by his judicial oath and by the ethical obligation incumbent on anyone who exercises a judicial function, to behave honourably, sincerely and impartially towards litigants and those who represent them. These obligations are the cornerstones of judicial integrity. A litigant is entitled to expect integrity of the judge; but he in turn must give the judge his trust. That is the only basis on which litigation can be conducted in an atmosphere of confidence rather than suspicion.
31 The presumption has most frequently been discussed in the context of allegations of bias. In Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 445, McLachlin C.J. stressed its significance in that context as follows:
An allegation that a judgment may be tainted by bias or by a reasonable apprehension of bias is most serious. That allegation calls into question the impartiality of the Court and its members and raises doubt on the public’s perception of the Court’s ability to render justice according to law. [para. 2]
...
... “(i)mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted by L’Heureux-Dubé J. and McLachlin J. (as she was then) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. [Emphasis added; para. 59.]
(See also R. v. Elrick, [1983] O.J. No. 515 (H.C.); R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A.); R. v. Lin, [1995] B.C.J. No. 982 (S.C.); R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para 117.)
32 In R.D.S., Cory J. also noted at para. 113 that the threshold for establishing a reasonable apprehension of bias is a high one because it calls into question not only the integrity of the presiding judge, but of the administration of justice itself. In other words, as Cory J. concluded at para. 112, “a real likelihood or probability of bias must be demonstrated ... mere suspicion is not enough”.
33 The test for displacing the presumption, therefore, requires that the apprehension of bias be reasonable in the eyes of someone who is reasonably informed about all the relevant circumstances. Those circumstances include “the traditions of integrity ... and ... the fact that impartiality is one of the duties the judges swear to uphold”. As previously noted, the presumption that judges will carry out their sworn duties also includes a presumption of legal knowledge. McLachlin J. confirmed in R. v. Burns, [1994] 1 S.C.R. 656, at p. 664, that “Trial judges are presumed to know the law with which they work day in and day out”.
34 The issue in this appeal is, therefore, whether the presumption of integrity has been displaced by “cogent evidence”, that is, would a reasonably informed person be satisfied that there is a “real likelihood” that the trial judge in this case has not complied with his oath of office in the manner and timing of the issuance of his reasons.
35 The trial judge’s conduct must be assessed against the strong presumption that he is acting in accordance with his oath. Charron J. is careful to point to a number of factors that cause her to conclude that in this case the reasons are unacceptable. They include the trial judge’s difficulty for four months in arriving at the verdicts; his bare declaration of guilt without any indication of his underlying reasoning; and his failure to respond to repeated requests from counsel to issue his reasons. At heart, these are criticisms about what she refers to as the “inordinate delay” in delivering the reasons after the verdicts. In my view, there may be many explanations for the judge’s conduct in this case.
36 It is true that the trial judge deliberated for four months before giving his verdicts, and delivered his written reasons 11 months after that. We cannot know why this particular — and acceptable — practice of delivering the result separately from the reasons was used in this case but the fact that it was should not detract from the presumption that the resulting reasons were, as all reasons are presumed to be, honest explanations for the conclusion the judge had reached. The content of those reasons may not survive judicial scrutiny, but that scrutiny is nonetheless something to which those reasons, and the judge who took the trouble to prepare them, are entitled.
37 In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, Binnie J. explained not only the purpose of reasons but also the appellate function in assessing them. Significantly, he confirmed that unless there are deficiencies in the reasons that prevent meaningful appellate review of the correctness of a trial judge’s decision, an appellate court ought not to conclude that the “serious remedy” of a new trial is justified:
Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. (para. 15)
...
Few would argue, however, that failure to discharge this jurisprudential function necessarily gives rise to appellate intervention. New trials are ordered to address the potential need for correction of the outcome of a particular case. Poor reasons may coincide with a just result. Serious remedies such as a new trial require serious justification. (para. 22)
On a more specific level, within the confines of a particular case, it is widely recognized that having to give reasons itself concentrates the judicial mind on the difficulties that are presented. ... The absence of reasons, however, does not necessarily indicate an absence of such concentration. We are speaking here of the articulation of the reasons rather than of the reasoning process itself. The challenge for appellate courts is to ensure that the latter has occurred despite the absence, or inadequacy, of the former. (para. 23)
...
... the purpose ... is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That provision limits the power of the appellate court to intervene to situations where it is of the opinion that (i) the verdict is unreasonable, (ii) the judgment is vitiated by an error of law and it cannot be said that no substantial wrong or miscarriage of justice has occurred, or (iii) on any ground where there has been a miscarriage of justice. (para. 25)
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)
...
It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached ... where the appeal court considers itself unable to determine whether the decision is vitiated by error. ... The simple underlying rule is that if, 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 has been committed. (para. 28)
38 The argument by Berger J.A. that there should be a refusal to consider written reasons in this case seems to me to be an argument urging a refusal to engage in any appellate review, let alone a meaningful one, in circumstances where, in essence, the reasons are unduly delayed.
39 This is, with respect, an entirely novel and puzzling basis for discrediting a judge’s reasons. As Binnie J. stated in Sheppard, at para. 28, the “mandate of the appellate court is to determine the correctness of the trial decision” , and the purpose of a trial judge’s reasons is to enable the reviewing court to make that assessment. Reasons show the public, the litigants, and a reviewing court the result of the judicial thought process. With respect, I cannot see how a reviewing court can refuse even to consider the reasons just because they have come late in the piece. It would be inconsistent with the presumption of integrity and with this Court’s cases establishing the high threshold that must be met before such a presumption is displaced, for judges — and litigants — to be told that the reasons came too late to be meaningfully reviewed, regardless of their quality.
40 The purpose of the presumption of integrity is not, as Mr. Teskey’s counsel argued, to insulate decisions from judicial review. It is to ensure that inappropriate assumptions, such as bias, are not idiosyncratically factored into the review. Reasons should be reviewed as if the judge’s integrity exists, subject to a determination, from examining the reasons, that it does not. A delay, either in reaching a result or in explaining it, both of which occurred in this case, would not, it seems to me, lead a reasonably informed observer to conclude that the judge has disregarded his or her oath of office. The failure to provide timely verdicts or reasons should not be encouraged. But it does not, without more, represent an error of law justifying ignoring either.
41 Charron J. accepts that the reasons in this case were not inappropriately tailored to respond to the Notice of Appeal. Charron J. also acknowledges that there is nothing inherently wrong with the practice of rendering a verdict with reasons to follow, but cautions against any such reasons being written or delivered so as to give rise to the perception that they are “result-oriented reasons”, or an “after-the-fact justification” for the result, rather than a reflection of the reasoning that led to it.
42 This is not an easy theory to implement. In practice, it seems to me to be extremely difficult, if not impossible, to determine what the substantive difference would be between reasons representing an after-the-fact justification and those reflecting thoughts preceding the result. All reasons are explanations — or justifications — of the result, regardless of whether any time has elapsed between the result and the articulated reasons for it.
43 It is not clear to me at what point the trial judge’s reasons in this case lost the benefit of the presumption of integrity. When did he cross the line of propriety from acceptable delay to after-the-fact justification? What is an acceptable delay in the ordinary case? Unless some guidance is provided on the question of “how long is too long”, judges will be left with a great deal of uncertainty about when their reasons will be deemed to be “too late”.
44 The fact that reasons come after a verdict does not mean that the verdict was not thought through before it was delivered. Judges should be presumed to know the law and the nature of their judicial duties, including the duty to arrive at a verdict only after careful deliberation. As was noted in Sheppard, at para. 51:
... the presumption that judges know the law and deal properly with the facts presupposes that whatever time is required to adjudicate the issues has in fact
been taken. While ... the act of formulating reasons may further focus and concentrate the judge’s mind, and demands an additional effort of self-expression, the requirement of reasons as such is directed only to having the trial judge articulate the thinking process that it is presumed has already occurred in a fashion sufficient to satisfy the demand of appellate review. [Emphasis added]
45 Judges should have available to them mechanisms to protect the effectiveness and fairness of a proceeding. This includes the ability to decide that it is best to disclose a result earlier than the reasons — a practice, in my view, that they should not be discouraged from engaging in. Judges who give their decision and then undertake to support it with fuller reasons should be free to do so without worrying that an interval between result and rationale will impugn the integrity of both. To get through their lists, trial judges are frequently called upon to make multiple decisions on a daily basis. To run their courtrooms effectively, this may involve stating a result right away with the explanation for the result to follow when the judge has the time to craft the explanation properly, knowing that both the losing party and a reviewing court are likely to scrutinize it with care.
46 Reasons explain what a judge has decided to do. They should be accepted as being honest reflections of that decision, whether delivered with or after the result, unless their content reflects the absence of judicial integrity. Trial judges are entitled to the presumption that they are, in their reasons, articulating “the thinking process that it is presumed has already occurred” (Sheppard, at para. 51). The reasoning that leads a trial judge to a verdict, therefore, should be presumed to be reflected in the reasons. That is why this trial judge is entitled to the presumption that what was reflected in the written reasons was a fuller articulation of his thinking process prior to reaching the result, notwithstanding the delay and other circumstances delineated by Charron J.
47 The presumption of integrity exists to protect the judicial role from undue perceptual assault. Suggesting that the judge’s reasons are “after-the-fact justifications” or “result-oriented” involves the very second-guessing of a judge’s thought processes that the presumption was designed to avoid. Where the delay is inordinate, the judge may be the recipient of critical comment by a reviewing court. But refusing even to consider the merits of the reasons — to assess their compliance with the record, the arguments and the law — does a greater disservice to the public perception of the integrity of the system, not to mention the perception of the litigants who are forced to undergo a new trial, than does the fact of undesirable delay.
48 The main grounds of appeal from the trial judge’s decision concerned issues of the sufficiency of evidence and reasonable doubt. The content of the trial judge’s reasons is more than sufficient to permit meaningful appellate review on these issues. As the majority in the Court of Appeal observed:
The written reasons consist of 91 paragraphs and Schedule A, which is a 151 paragraph summary of the trial evidence. They make fact findings, assess credibility, prefer some evidence over other evidence, and explain the rejection of certain arguments. (para. 35)
49 All members of the Court of Appeal acknowledged that this case was one of highly complex and circumstantial evidence — one that, as the majority in the Court of Appeal wrote, “cried out for analysis”. Teskey was accused of causing injuries which included: basil skull fracture, right orbital fracture, brain bruising, brain bleeding, fractured ribs, multiple contusions and a torn right ear. The victim has been in a waking coma ever since. Teskey was also facing a dangerous offender application, raising the possibility of an indeterminate sentence.
50 Given this complexity, it was not surprising that the trial judge took more time both in reaching the verdicts and in articulating the thought process that went into reaching them. It is clear from the trial judge’s written reasons that he subjected the evidence to painstaking analysis and examination. A gap of 11 months in this case, even with the surrounding factors delineated by Charron J., does not represent the level of cogency necessary to displace the presumption that the trial judge behaved honourably and in accordance with his judicial duties in preparing his reasons.
51 His reasons were responsive to the facts and issues at trial. They were, accordingly, entitled to be reviewed on their merits.
52 I would dismiss the appeal.
Appeal allowed, Bastarache, Deschamps and Abella JJ. dissenting.
Solicitors for the appellant: Royal McCrum Duckett Glancy & Hatch, Edmonton.
Solicitor for the respondent: Attorney General of Alberta, Edmonton.