By majority decision, the Supreme Court of Canada ruled:
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.Interestingly, the courts cited the case of R v. Sheppard [2002] 1 S.C.R. 869, an SCC decision on a case from Newfoundland and Labrador in which the court decided on how much a judge must state orally or in writing in delivering a verdict.
The trial judge addressed none of the troublesome issues in the case but said only: "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." A majority of the Court of Appeal characterized the trial reasons as "boiler plate". The conviction was set aside and a new trial ordered based on the absence of adequate reasons.Representing the Crown in that appeal was Harold Porter, then deputy director of public prosecutions and currently the Provincial Court Judge in Grand Bank. Porter's decisions from the bench in Grand Bank have sometime made news for their clear writing and humour.
Held: The appeal should be dismissed. The trial judge erred in law in failing to provide reasons that were sufficiently intelligible to permit appellate review of the correctness of his decision.
Porter made the local papers in Ottawa at the time Sheppard was first heard by the SCC. In an exchange with then Madam Justice Louise Arbour, Porter offered the view that a judge must offer some indication of the reasons for a decision. The length of the indication would have to fall somewhere in length between what had been offered by the trial judge in Sheppard and Marcel Proust's A la recherche de temps perdu.
For other Porter cases and their sometimes colourful summary of the evidence and the law, consider:
R.v Kearley, which begins with the lines:
Lobsters, being creatures of the sea, do not routinely migrate ashore en masse to take up habitation in plastic boxes under fishing stages. Therefore, the thirty seven live lobsters and fourteen codfish that the fisheries officers found under Kearley’s shed on January 10, 2004, must have been put there by somebody. By laying the charges, the Crown has alleged that the fish were caught and hidden under the step of Kearley’s shed by the Accused. For the reasons which follow, I have concluded that the Crown has failed to prove the charges beyond a reasonable doubt.or the other R. v Kearley or R. v. Kearley.
Then there's R. v. Mitchell, an impaired driving case. This one is worth reading for the inadvertent humour in a deplorable circumstance. Police testified that they encountered the accused at approximately 3:00 AM speeding. Porter summarises the events of the case, as presented in evidence.
There are passages like this:
The Accused says that he did not realize until he had parked his car that the police were behind him, and that he had wanted to go into the house to check on his teenaged daughter. He denies that he overshot his driveway, and says that he often parks in the same place as where he left his car that night. He also denies saying the things to the police that they say that he said, although he does admit to having said some "misdemeanour words", which include the phrases "fuck off and leave me alone" and "what the fuck is going on?" He also admits that he might have asked "who ratted me out ? ".Who said being a judge couldn't be fun as well as socially useful?
[Police testified they pursued the accused for upwards of three kilometres in the middle of the night as he sped along at 23 kilometres per hour above the posted speed limit.]
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