The McLachlin Court in Criminal Law: A Principled and Pragmatic Court. By Justice Shaun Nakatsuru June 19, 2009 Ottawa

Transcription

1 The McLachlin Court in Criminal Law: A Principled and Pragmatic Court By Justice Shaun Nakatsuru June 19, 2009 Ottawa

2 INTRODUCTION Over the last decade, in criminal law, the McLachlin Court has offered much by way of a principled yet pragmatic approach/analysis to the conduct of criminal trials. This approach has permeated substantive criminal law, the law of evidence, procedure, and constitutional rights. From a trial court s perspective, the decisions have been invaluable, discerning, and challenging. In general, they have provided coherent analytical frameworks to guide a court, tempered by a recognition of the realities prevalent in criminal trial courts.

3 OVERVIEW OF THE PRESENTATION The example chosen to illustrate: Appellate review of the sufficiency of a trial court s reasons Context of criminal trials The response of the McLachlin Court regarding the duty to give reasons The specific application to when reasonable doubt applies to credibility findings Other areas of criminal law where the approach has found favour Conclusion

4 Chart 1 Ten most frequent offences heard in adult criminal court, Canada, 2006/2007 (Stats Canada) Total Cases: 372, Impaired driving Minor Assault Theft Fail to Comply Breach of Probation Major Assault Uttering Threats Fraud Drug Possession Poss Stolen Property

5 Chart 2 Adult court processing of federal statute cases in provincial and selected superior courts, Canada, 2006/ ,084 (includes 1,079,062 charges) 242,988 Found Guilty (65%) 109,863 Stay/withdrawn (30%) 13,480 Acquitted (4%) 5,753 Other decisions (2%)

6 Ontario Court of Justice Biennial Report 2006/ Received Disposed Pending

7 Ontario Court of Justice Charges Disposed (Criminal Code, Federal, and Youth) Before Trial At Trial Without Trial At Trial With Trial

8 TRENDS: CANADIAN CENTER FOR JUSTICE STATISTICS 2006/2007 Overall, the adult criminal court data has remained stable over time. Cases are becoming more complex, require more appearances and take longer to dispose of. Multiple-charge cases: 60% of total caseload(57% in 2002/2003). Average number of appearances: 9.6 appearances (7.9 appearances in 2002/2003). Average elapsed times: 238 days (195 days in 2002/2003).

9 THE JUDICIAL RESPONSE I had the opportunity to hear the evidence of [the complainant] and to observe her demeanour in the witness stand. Although she was not sure of the exact dates of the specific acts and was confused as to some of the continuing events, she did present her evidence in an honest and straightforward manner, without equivocation. She was in my opinion a credible and believable witness. I accept her evidence as to the alleged indecent assaults from 1980 to 1983, and I also accept her evidence as to the sexual assault that occurred in January of (Statement voir dire) The statements are admissible on the basis of credibility. 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.

10 R. Burns, [1994] 1 S.C.R. 656 R. v. Barrett, [1995] 1 S.C.R. 752 By itself, the absence of reasons is not a ground for appellate review when the finding is supportable by the evidence or the basis for the finding is apparent from the circumstances. The cases do not support a positive duty to give reasons. This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. (Burns, supra, at para. 18) This statement (referring to a passage in Harper v. the Queen, [1982] 1 S.C.R. 2 at p. 14) should not be read as placing on trial judges a positive duty to demonstrate in their reasons that they have completely appreciated each aspect of relevant evidence. (Burns, supra, at para. 17)

11 R. v. Sheppard, [2002] 1 S.C.R. 869 R. v. Braich, [2002] 1 S.C.R. 903 Previous jurisprudence is affirmed: no stand alone ground of appeal. There is no general abstract duty to give reasons. However, the duty to give reasons is recognized and is assessed in a contextual manner. A functional approach is taken to the issue of providing meaningful reasons. Function depends on context. In an appellate context, the function is the exercise of the right to an appeal. Is the functional need to know in order to appeal been satisfied? Stated by the Court to be a pragmatic approach. The core of the functional approach in this context is whether the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision. If so, then a reversible error of law has been committed. In assessing this, the evidentiary record, the submissions of counsel, and the reasons are all considered.

12 THE PRINCIPLES IN THIS FUNCTIONAL APPROACH At the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public. Decisions on individual cases are neither submitted nor blessed at the ballot box. The courts attract public support or criticism at least in part by the quality of their reasons. If unexpressed, the judged are prevented from judging the judges. (Sheppard, supra, at para. 5) From this fundamental principle, in a general sense, a duty to give reasons owed to the public arises (ie. to satisfy the public that justice has been done and to promulgate the rule of law). Failure in this duty does not necessarily give rise to appellate intervention. In the trial context, the purpose of the reasons is also to explain the results to the parties. There is a duty by the trial judge to give intelligible reasons. However, again, a poor job of explaining the results do not lead to a successful appeal. In the appellate context, the principle underlying the assessment of reasons is the proper scope of appellate review. This is the focus of the Court s decisions in Sheppard and Braich. There should only be appellate intervention when unintelligible reasons gives rise to prejudice.

13 The Court rejected the argument that this would burden already overburdened trial judges and appeal courts. The Court referred to the high standards of trial judges and posited successful appeals on this basis would be rare. Even so, basic fairness requires an explanation and it is no answer to say the judge is too busy to do more. The Court expressly rejects a more general duty to give reasons: To the extent these commentators are saying that giving reasons is part of the job of a professional judge and accountability for the exercise of judicial power demands no less, I agree with them. To the extent they go further and say that the inadequacy of reasons provides a free standing right of appeal and in itself confers entitlement to appellate intervention, I part company. The requirement of reasons, in whatever context it is raised, should be given a functional and purposeful interpretation. (Sheppard, supra, at para. 53)

14 POST-SHEPPARD R. v. Zinck, [2003] 1 S.C.R. 141; R. v. Buhay, [2003] 1 S.C.R. 631; R. v. Owen, [2003] 1 S.C.R. 779; R. v. Boucher, [2005] 3 S.C.R. 499; R. v. Gagnon, [2006] 1 S.C.R. 554; R. v. Beaudry, [2007] 1 S.C.R. 190; R. v. Rhyason, [2007] 3 S.C.R. 108; Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129; R. v. C.L.Y., [2008] 1 S.C.R. 5; R. v. Dinardo, [2008] 1 S.C.R. 788; R. v. Walker, [2008] 2 S.C.R. 245; F. H. v. McDougall, [2008] 3 S.C.R. 41; R. v. R.E.M., [2008] 3 S.C.R. 3; R. v. H.S.B., [2008] 3 S.C.R. 32; R. v. Sinclair, [2005] A.J. No (C.A.); R. v. Kendall (2005), 198 C.C.C. (3d) 205 (Ont.C.A.); R. v. Chappell (2003), 172 C.C.C. (3d) 539 (Ont. C.A.); R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.); R. v. C.(P.E.) (2004), 189 C.C.C. (3d) 178 (B.C.C.A.) var d (2005), 196 C.C.C. (3d) 351 (S.C.C.); R. v. Saulnier (2005), 195 C.C.C. (3d) 131 (N.S.C.A.); R. v. Giroux (2007), 228 C.C.C. (3d) 164 (B.C.C.A.); R. v. D.(R.W.) (2005), 198 C.C.C. (3d) 541 (Ont. C.A.); R. v. Dionne (2004) 193 C.C.C. (3d) 228 (Alta. C.A.) etc. etc.

15 R. v. R.E.M., [2008] 3 S.C.R. 3 While at common law there is no duty to give reasons, procedural fairness requires that reasons be given in a criminal trial. This is a strong statement of principle that reasons are an intrinsic part of what constitutes a fair trial. A greater emphasis is placed on the three main functions of reasons: 1. Reasons tell the parties why the decision was made 2. Reasons provide public accountability for the decision 3. Reasons permit effective appellate review The functional perspective on an appellate review of reasons have broadened in principle to specifically include duties to the parties at trial and the public in general. Thus, all three objectives must be met in order to meet threshold appellate review. This is a logical and principled expansion from the emphasis on effective appellate review in Sheppard.

16 The test for sufficient reasons remains grounded in the realities of the criminal trial and steadfastly pragmatic and flexible: 1. Nothing more than the objectives required. Reasons can fall short of the ideal. 2. Reasons must show why but not how the judge arrived at his or her conclusion. If why is discernable, the three functions have been met. 3. Judge need not expound on well settled law, recite uncontroversial evidence, detail each finding or controverted fact (so long as the finding can be discerned) 4. The Court recognizes difficulties in explaining findings of credibility. Such findings do not always lend themselves to precise and complete verbalizations. 5. On appellate review, the whole record is assessed to determine sufficiency. In particular, what were the live issues at trial is a critical context. The trial judge must deal with the substance of the live issues at trial in the reasons. 6. Appellate review should start from a stance of deference to the trial judge.

17 ILLUSTRATIONS OF THE FLEXIBLE APPROACH IN THE PROMOTION OF CASE-SPECIFIC JUSTICE R. v. R.E.M., [2008] 3 S.C.R. 3; R. v. H.S.B., [2008] 3 S.C.R. 32: Credibility findings may not lend itself to full explanation R. v. Dinardo, [2008] 1 S.C.R. 788: Reasons deficient on issue of credibility R. v. Walker, [2008] 2 S.C.R. 245: Crown appeal of an acquittal

18 COMMON SENSE APPROACH TO THE APPLICATION OF THE PRINCIPLES IN R. V. W.(D.) R. v. W.(D.), [1991] 1 S.C.R. 742 First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

19 MORE RECENT CASES HAVE CONSISTENTLY ADVOCATED A PRAGMATIC AND FLEXIBLE APPROACH TO APPLICATION OF PRINCIPLES IN W.(D.) R. v. Boucher, [2005] 3 S.C.R. 499: A trial judge by stating that she/he did not believe the accused deals with the first two steps of W.(D.). R. v. J.H.S., [2008] 2 S.C.R. 152: In a jury charge, the Crown s burden of proof beyond a reasonable doubt must be related to the assessment of credibility but the charge need not follow the W.(D.) formula. The same applies to reasons of a trial judge. See R. v. C.L.Y., [2008] 1 S.C.R. 5. R. v. R.E.M., [2008] 3 S.C.R. 3: Reasons adequately explaining the acceptance of a complainant s testimony is a sufficient justification for rejecting the accused s testimony. This accords with W.(D.) and Sheppard.

20 OTHER AREAS OF PRINCIPLED AND FLEXIBLE ANALYSIS BY THE COURT This type of analysis has been promulgated by the Court in other areas of criminal law. It has provided guidance to the trial courts not only by setting out fundamental principles to steer the judicial decision but also in permitting flexibility in application to do justice in an individual case. Some examples are: Hearsay Exceptions R. v. Khelawon, [2006] 2 S.C.R. 787: With respect to the principled exception to the hearsay rule, a refocus on a more functional approach and on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances proposed to overcome those dangers. In assessing threshold reliability, corroborating or conflicting evidence can be considered.

21 R. v. Blackman, [2008] 2 S.C.R. 298: Recognizing that the consideration of extrinsic evidence on the issue of reliability could overwhelm the voir dire, the Court signalled that the trial judge must remain focused on the hearsay evidence in question and should not permit the voir dire to become a full trial on the merits. Similar Fact Evidence R. v. Handy, [2002] 2 S.C.R. 908: A principled approach to the admissibility of similar fact evidence set out, rejecting any previous categories approach. Similar fact evidence is presumptively inadmissible but exceptionally it can be admitted to show specific but not general propensity. Section 24 Jurisdiction under the Charter R. v Ontario Inc., [2001] 3 S.C.R. 575: Functional approach taken to the question of whether a provincial offences court should have s. 24 jurisdiction under the Charter. Vetrovic warnings R. v. Khela, 2009 S.C.C. 4; R. v. Smith, 2009 SCC 5: A functional approach to the Vetrovec warning regarding unsavoury witnesses.

22 CONCLUSION This is a court of law, young man, not a court of justice. Oliver Wendell Holmes Jr. ( ) The first decade has seen the Court as a place where justice as much as the law is welcome.