R. v. Kendall

R. v. Kendall Collection Decisions of the Court of Appeal Date 2005-06-16 Docket numbers C41883 Judges MacPherson, James C.; Sharpe, Robert J.; Cronk, Eleanore Ann Subject Criminal Decision Content DATE: 20050616 DOCKET: C41883 COURT OF APPEAL FOR ONTARIO MACPHERSON, SHARPE AND CRONK JJ.A. B E T W E E N : HER MAJESTY THE QUEEN Respondent Lorne M. Honickman, for the appellant - and - SHANNON KENDALL Appellant Philip Perlmutter, for the respondent Heard: January 25, 2005 On appeal from the judgment of Justice Janet Wilson of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated April 29, 2004, allowing the respondent’s appeal from verdicts of acquittal entered by Justice E. Gordon Hachborn of the Ontario Court of Justice on September 4, 2003. CRONK J.A.: [1] This appeal is concerned with the adequacy of a trial judge’s reasons for verdicts of acquittal entered in summary proceedings on charges of impaired driving and driving with blood alcohol levels over the legal limit. [2] In R. v. Sheppard, [2002] 1 S.C.R. 869, the Supreme Court of Canada confirmed the duty of trial judges to provide reasoned decisions in criminal cases and established the standard against which the sufficiency of reasons in such cases is to be assessed. The issue on this appeal is whether the trial judge erred in law by failing to provide an explanation for his decision to acquit the appellant sufficiently intelligible to permit meaningful appellate review of the correctness of his decision. We are required to consider whether the requirement of reasons applies to an acquittal in summary proceedings and, assuming that it does, whether the Sheppard standard for adequate reasons differs where the challenged verdict is an acquittal. We are also required to determine whether the trial judge’s reasons in this case are deficient and, if so, whether this occasioned prejudice to the exercise of the Crown’s right of appeal having regard to the record as a whole. [3] By oral reasons given on September 4, 2003, the trial judge acquitted the appellant on one count each of impaired driving (the “impaired charge”) and driving with over 80 milligrams of alcohol in 100 millilitres of blood (the “over-80 charge”), contrary to ss. 253(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46. His entire reasons consist of two sentences: Shannon Kendall pleaded not guilty to impaired driving, and driving with over 80 milligrams of alcohol in 100 millilitres of blood on the 10th of May, 2002. I agree with and adopt the submissions made on behalf of the accused, and there will be an acquittal on both counts. [4] The Crown appealed, arguing that the trial judge’s reasons fail adequately to explain the basis for the acquittals, thereby preventing meaningful appellate review. By judgment dated April 29, 2004, the appeal judge accepted the Crown’s argument, set aside the acquittals and directed a new trial. [5] The appellant now seeks leave to appeal that decision to this court on the ground that the appeal judge erred by allowing the Crown’s appeal. In particular, the appellant submits that a higher standard for a finding of deficient reasons applies where the challenged verdict is an acquittal, rather than a conviction, and that any deficiencies in the trial judge’s reasons in this case are not fatal because the record, viewed in its entirety, reveals the basis for the acquittals. Accordingly, the appellant argues, no significant impediment to meaningful appellate review of the correctness of the trial judge’s decision arose, thus precluding appellate intervention. [6] For the reasons that follow, I conclude that a trial judge’s duty to provide adequate reasons in a criminal case applies to reasons given for an acquittal or a conviction. However, the assessment of the sufficiency of reasons for an acquittal is particularly informed by the presumption of innocence and the Crown’s burden in a criminal case to prove the guilt of the accused beyond a reasonable doubt. In this case, viewed in the context of the record as a whole, the trial judge’s reasons did not afford the Crown a meaningful right of appeal. The reasons do not conform with Sheppard and a new trial is required. Accordingly, I would grant leave to appeal and dismiss the appeal. I. Facts (1) Case for the Crown [7] On May 10, 2002, Police Constables Mark Poliak and Sukhjinder Gill of the Metropolitan Toronto Police Force’s traffic services division were on duty together in a marked police cruiser in Toronto’s downtown entertainment district. At about 12:59 a.m., they noticed the appellant attempting to manoeuvre a sports utility vehicle (“SUV”) out of a crowded parking lot adjacent to a nightclub. The appellant was accompanied by her niece, Andrea Dawson, who was a passenger in the SUV. [8] Officer Poliak testified that the appellant initially drove towards a blocked laneway and thereafter attempted to turn her SUV around by executing a “ten- to 15-point turn”. She then drove towards another exit that faced the police cruiser, “overshot” the exit by driving slightly past it, and again executed the “ten-point turn kind of thing”. [9] Officer Gill described the appellant’s initial manoeuvre as “very convoluted”, consisting of at least nine or ten passes with the SUV, back and forth in the parking lot. He said that the appellant eventually turned the SUV around, but then again executed a similarly convoluted series of turns. [10] The police pulled the SUV over after the appellant drove about 50 yards away from the parking lot. [11] Officer Poliak testified that when he approached the driver’s side of the SUV and spoke with the appellant, he observed several signs of impairment. He said that, “an overpowering - - totally overpowering smell of alcohol beverage…just hit me in the face, it was emitting from [the appellant’s] mouth when she was speaking to me”. He also said that the appellant had difficulty removing the photo portion of her driver’s licence for his inspection; she couldn’t stand up straight when speaking with him outside the SUV (at one point, he thought that she was going to “topple over” onto the sidewalk); she was swaying back and forth, shifting her weight, and would not look him directly in the eyes; her speech was “extremely slurred”; and her eyes were “dilated, red and glossy”. Officer Poliak summarized his observations this way: “In my experience, she was one of the worst ones that - - like worst case symptoms here that I have seen in my experience of arresting impaired drivers.” Officer Poliak arrested the appellant on the impaired charge and placed her in the back seat of the police cruiser. [12] Officer Gill testified that when he observed the appellant in the police cruiser, he smelled alcohol in the vehicle and on the appellant’s breath, the appellant was slurring her words, and she was in no state to drive. [13] After her arrest, the appellant was taken to a police station. According to the arresting officers, the appellant continued to exhibit numerous signs of impairment while she was at the station. For example, Officer Poliak said that the appellant placed her weight on her forearms and leaned on a desk for support while undergoing booking procedures; intermittently flopped her head up and down; had trouble standing up; cried uncontrollably; had extremely slurred speech; and was not walking straight. Both police officers testified that the appellant interrupted the booking officer and a breathalyzer technician several times as they attempted to explain procedures to her. [14] Police Constable Beverley Dunn administered two breathalyzer tests to the appellant at the police station. These produced blood alcohol concentration readings well over the legal limit: 165 and 160 milligrams of alcohol in 100 millilitres of blood at 1:59 and 2:21 a.m., respectively. The administration of the tests was videotaped. [15] At trial, Officer Dunn confirmed many of the observations of impairment described by the arresting officers. She stated that the appellant had “a strong odour of an alcoholic beverage” on her breath; her eyes were glassy and bloodshot; she was “wobbly on her feet, swaying slightly as she walked”; and her head was “bobbing” up and down. According to Officer Dunn, the effects of alcohol on the appellant were “obvious”. (2) Case for the Defence [16] The appellant testified at trial. She said that on the evening of May 9, 2002, she accompanied her niece and four friends to a restaurant for dinner to celebrate the birthday of one of her niece’s friends. They arrived at the restaurant at about 6:30 p.m. The appellant stated that she consumed one full glass and one partial glass of red wine at the restaurant. [17] The appellant also claimed that she had been suffering from severe asthma and bronchitis for about five months prior to the night in question. As a result, on May 9, she was using a ventolin inhaler device and was taking 500 milligrams of naproxen, an analgesic and anti-inflammatory medication, twice per day to relax her bronchial system. She said that while she was at the restaurant, she was coughing, experienced difficulty breathing and used “quite a lot” of ventolin. As well, at about 7:30 or 8:00 p.m., her coughing made her ill, requiring her to leave her companions and vomit. She then rejoined her group and continued to consume her meal. [18] At about 9:00 p.m., the appellant, her niece and two other members of their party left the restaurant and drove to the nightclub. The appellant said that, on arrival, she ordered a sixteen-ounce glass of draught beer for herself and proceeded to “nurse” it throughout the evening, until she left the nightclub with her niece at about 12:30 a.m. [19] During her testimony, the appellant maintained that she was “drinking responsibly” and driving “absolutely appropriately” at the critical times and that she did not feel impaired at any time prior to her arrest. She denied many of the indicia of impairment described by the police witnesses. For example, she denied making a ten- or 15-point turn in the parking lot, claiming that she executed “a very safe” three- or five-point turn when she attempted to drive out of the lot, but then discovered that her intended exit was blocked. She stated that when she backed up to make a second turn, it took her four “tries”, but it wasn’t a complete turn. Later in her evidence, she said that she did not recall how many tries it took to back up her SUV. She also denied swaying back and forth on her feet, feeling as if she was about to “topple over” onto the sidewalk, or having any problem removing her identification papers from her wallet at the time of her arrest. She stated that she had no problem walking into the police station without assistance; she had no difficulty standing or walking while at the police station; and she did not slur her words “at any time” during her encounters with the police. [20] The appellant also offered several innocent explanations for the signs of impairment described by the police officers. When asked if she was unsteady on her feet, she said that she had “very sore feet” because she had been standing since early morning and was wearing high-heeled shoes; that although she leaned on the counter at the police station and was balancing her weight from one foot to the other, she was not “swaying” but, rather, was taking weight off her sore feet; that, in any event, she suffers from a slight limp due to multiple knee operations; and that, although she may have had two arms on the police counter at some point, this was part of an automatic reaction to lean forward while she was speaking with the booking officer. She also indicated that her asthmatic-induced coughing causes her eyes to become a “little watery”, her voice has a natural “raspy” quality that is attenuated by coughing, and she has a slight lisp. [21] Ms. Dawson, the appellant’s niece, confirmed her aunt’s version of the amount of alcohol that her aunt consumed at the restaurant and the nightclub. She said that when they left the nightclub, her aunt “appeared fine”. In contrast, in connection with her own alcohol consumption, Ms. Dawson candidly acknowledged that she was intoxicated when she left the nightclub with her aunt and, as a result, that she would not have driven the SUV. [22] Ms. Dawson provided virtually no detail in her evidence regarding her aunt’s driving. She said only that her aunt performed a three-point turn when attempting to leave the parking lot after discovering that the exit was blocked. Later in her evidence, she stated that she assumed that her aunt made a three-point turn. [23] Although she did not recall seeing her aunt use a puffer or inhaler on May 9, Ms. Dawson also testified that her aunt was coughing and complaining of breathing difficulties throughout the evening. [24] Dr. Michael Corbett, a forensic toxicologist, was the last defence witness. He offered the opinion, given the appellant’s height and weight (five feet, five inches and 130 pounds) and her stated alcohol consumption between 6:30 or 6:50 p.m. to midnight on the night of her arrest, that the appellant’s blood alcohol level at 12:59 a.m. on May 10 ranged from zero (alcohol free) to a maximum of 66 to 69 milligrams of alcohol per 100 millilitres of blood. [25] Dr. Corbett also testified that, to generate a breathalyzer result of 160 at 2:21 a.m. on May 10, as the appellant did, she would have had to consume at least 2.4 glasses of wine or 2.6 sixteen-ounce glasses of beer, in addition to her stated consumption through-out the evening. [26] According to Dr. Corbett, none of the medications taken by the appellant on May 9, if used as prescribed, would affect her blood alcohol levels. Nor would the medications, if taken as directed, “interact with alcohol to enhance in any way impairment from alcohol”. (3) Final Submissions [27] In his final submissions, defence counsel urged the trial judge to reject the police witnesses’ evidence of impairment. He pointed out that many of the arresting officers’ more significant observations of impairment, such as the “ten- to 15-point turn” in the parking lot, the appellant “almost toppling over” on the sidewalk and her slurred speech, were not recorded in the officers’ notebooks. He also submitted that significant aspects of the officers’ testimony were unbelievable, including, for example, their claim that they allowed a suspected impaired driver to drive out of the parking lot. [28] Defence counsel also urged the trial judge to consider innocent explanations for the presence of the indicia of impairment described by the officers: bloodshot and teary eyes could be explained by the appellant’s coughing, her allergies and her presence in a smoky bar; the appellant’s slurred speech could be due to her lisp and raspy voice; and her “swaying” could be explained by her sore feet. Defence counsel further contended that the police videotape of the booking process and the administration of the breathalyzer tests failed to depict the signs of impairment alleged by the Crown. [29] On the over-80 charge, defence counsel referred the trial judge to the decisions of this court in R. v. Carter (1985), 19 C.C.C. (3d) 174 and R. v. Heideman (2002), 168 C.C.C. (3d) 542, as well as R. v. Rodek (2001), 18 M.V.R. (4th) 286 (Ont. S.C.J.) on the issue of the evidence required to rebut the evidentiary presumptions that operate against an accused under s. 258(1) of the Criminal Code. He also emphasized that the Crown had not led evidence challenging the appellant’s stated alcohol consumption or Dr. Corbett’s testimony of her imputed blood alcohol levels, based on that evidence of consumption. [30] In her final submissions, Crown counsel acknowledged that this case did not raise any complicated legal issues. She argued that the defence theory on the impaired charge involved two inconsistent or conflicting positions: According to the accused, there should be no signs of impairment at all, that’s her evidence, none, zero. And [she] then goes on to explain all the signs of impairment. She really is riding two horses at the same time. … She can’t have both. She either has to say, “I was exhibiting these symptoms and this is the explanation,” or she says, “I wasn’t exhibiting them at all,” and she has chosen to say she wasn’t exhibiting them at all. She is saying there is no sign of impairment. So when my friend stands up in submissions and says, “They’re all explained away,” it ignores the accused’s own evidence that there weren’t any signs at all. That’s her evidence. That’s his evidentiary foundation that there’s none, zero [emphasis added]. [31] On the over-80 charge, Crown counsel argued that the appellant’s testimony, including her evidence of her alcohol consumption on the night in question, was not worthy of belief, with the result that there was an insufficient evidentiary foundation to support Dr. Corbett’s opinion regarding the appellant’s blood alcohol level at the time of the offence. She also pointed to frailties in the consumption evidence given by the appellant’s niece, including that she has a close relationship with the appellant, that her opportunities to observe the appellant at the bar were limited and that she herself was drinking quite heavily at the bar. [32] In reply, with respect to the impaired charge, defence counsel denied that the appellant was “riding…two sides at the same time”: [C]learly what the defence position is, and I want to make it very, very clear because there seems to be some ambiguity here, or through my friend’s submissions. It’s the defence position that there was no slurring, that there was no toppling over. That’s why it never appeared in the notes. I simply was submitting, Your Honour, that if Your Honour finds as a fact that there was slurring, that perhaps it was the lisp. If Your Honour finds as a fact that she was unsteady on her feet, then perhaps it was as Ms. Kendall said, because of the shoes. … That’s what that was about, that I want the defence position to be clear. We are not saying there was slurring. We are not saying there was toppling over, and we were not saying even [that] there was crying hysterically. However, if Your Honour finds as a fact there were all these, what could be described as indicia, these are the reasonable explanations for it. We are not riding, as my friend says, two sides at the same time [emphasis added]. (4) Appeal Judge’s Decision [33] The appeal judge accepted that a trial judge’s duty to provide adequate reasons applies equally to reasons for convictions and acquittals. She stated: “[J]udges are not entitled to simply render perfunctory, meaningless reasons without any guideline for the basis of a decision with respect to acquittal.” She observed that the trial judge failed to articulate any credibility findings concerning the evidence of the police witnesses in his reasons, that it was unclear from his reasons “what evidence, if any, was accepted” by him, and that he followed the undesirable practice of “simply adopting a submission made by counsel for the accused [which] is not helpful in understanding the matters in issue or any of the factual, legal conclusions reached by the trial judge”. [34] The appeal judge concluded that the trial judge’s decision was unreasonable. She also stated: Many unanswered questions arise in my mind from a review of the transcript. In my view, the terse pro forma reasons of the learned trial judge have effectively precluded the Crown from a meaningful right of appeal. II. Issues [35] There are three issues: (1) Does a trial judge’s duty to provide adequate reasons apply to reasons for an acquittal in summary proceed-ings? (2) If the answer to (1) is ‘yes’, does the standard for adequate reasons established in Sheppard differ where the challenged verdict is an acquittal, as opposed to a conviction? (3) Are the trial judge’s reasons in this case deficient and, if so, did this prejudice the exercise of the Crown’s right of appeal having regard to the record as a whole? III. Analysis (1) Duty to Provide Adequate Reasons [36] I have no difficulty in concluding that the duty of a trial judge to provide adequate reasons in a criminal case applies to acquittals as well as to convictions. [37] In describing the duty to provide reasoned decisions, the Supreme Court in Sheppard did not differentiate between reasons for acquittals and those for convictions. In several passages in Sheppard, Binnie J.’s comments expressly or impliedly encompass criminal cases that result in acquittals: Sheppard at paras. 46, 55 and 66. See also the decision of this court in R. v. Lagace (2003), 181 C.C.C. (3d) 13 at para. 32. [38] Moreover, the three important rationales identified in Sheppard for the requirement of adequate reasons apply with equal force to reasons for convictions and acquittals: judges owe an obligation to explain their decisions so that members of the public may satisfy themselves that justice has, or has not, been done in a particular case; judges owe an obligation to the losing party to explain why he or she has lost; and judges owe an obligation to counsel and appeal courts to facilitate informed consideration of grounds of appeal: Sheppard at para. 24. See also the decisions of this court in R. v. Maharaj (2004), 186 C.C.C. (3d) 247 at para. 21, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 340 and R. v. D. (S.J.) (2004), 186 C.C.C. (3d) 304 at para. 24, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 365. [39] On my reading of Sheppard, the requirement of adequate reasons is a core feature of the administration of justice in Canada. Reasons provide the lens through which trial courts ultimately are held accountable to the community and the parties for their decisions. Reasons for judgment are also one of the important means by which confidence in the legitimacy of Canadian judicial institutions, and in the administration of the criminal justice system generally, is fostered: Sheppard at paras. 5 and 15. [40] Sheppard also holds, however, that deficiencies in a trial judge’s reasons do not automatically constitute reversible error or afford a ‘stand-alone’ ground of appeal: Sheppard at paras. 33, 42 and 53. Rather, the obligation to provide adequate reasons depends on the circumstances and context of the case. This requires a functional and purposeful interpretation of reasons: Sheppard at para. 53. See also R. v. Braich, [2002] 1 S.C.R. 903, 162 C.C.C. (3d) 324. [41] In Sheppard, Binnie J. emphasized that the requirement of reasons is intended to ensure that a trial court’s decision is explained and meaningful appellate review of the decision is facilitated. He stated (at para. 55): The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision. [42] This is the baseline standard against which the adequacy of a trial judge’s reasons in a criminal case is to be measured, whether the reasons are for a conviction or an acquittal. The reader of reasons for judgment should not be obliged to act as a soothsayer, foraging through the trial record in an unguided effort to discern the basis for a trial judge’s decision, while ‘looking through a glass, darkly’. [43] Sheppard also establishes that, in the face of deficient reasons, if the record does not otherwise satisfactorily explain the trial court’s decision, an error of law has been committed: Sheppard at paras. 25 and 28. However, where the record as a whole, including the reasons, plainly indicates the basis for a trial judge’s decision, deficiencies in the reasons will not support appellate intervention. See Sheppard at paras. 37, 42 and 55. See also R. v. R. (D.), [1996] 2 S.C.R. 291, 107 C.C.C. (3d) 289 at para. 55. [44] Accordingly, to succeed in an appeal based upon the insufficiency of a trial judge’s reasons, the appellant must show not only that the reasons are deficient, but also that the deficiency has occasioned prejudice to the exercise of the appellant’s right of appeal: Sheppard at para. 33. (2) Assessment of the Sufficiency of Reasons for an Acquittal [45] The appellant argues that a different standard applies to the assessment of the adequacy of reasons for an acquittal. She asserts that the sufficiency of reasons for an acquittal must be determined in the context of the Crown’s limited rights of appeal from an acquittal, in contrast to an accused’s broader rights of appeal against a conviction. She also submits that the assessment of the adequacy of reasons for an acquittal is informed by considerations that arise from the presumption of innocence and the Crown’s obligation to prove an accused’s guilt of the crime charged beyond a reasonable doubt. (i) Crown’s Rights of Appeal from an Acquittal [46] Under s. 813 of the Criminal Code, the Crown may appeal from an order that stays proceedings on an information or dismisses an information. Unlike in indictable matters, the Crown’s right of appeal in summary proceedings is not limited to questions of law alone and the Crown may appeal on questions of fact, including on the basis of an allegation that the verdict is unreasonable: see R. v. Wilkie (1980), 56 C.C.C. (2d) 61 (Ont. C.A.). [1] As on an appeal by an accused, the summary conviction appeal court may not retry the case: see R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 32 C.C.C. (3d) 353 (Ont. C.A.), leave to appeal to S.C.C. refused, (1987), 38 C.C.C. (3d) vi. [47] The appeal judge appears to have been of the view that the grounds of the Crown’s appeal from the acquittals in this case included an assertion of unreasonable verdicts. She stated: It appears, from my review of the transcript, that the decision of the trial judge is unreasonable and fails the test of “whether a properly instructed jury acting judicially could reasonably have rendered the verdict it rendered”. [48] The appeal judge was mistaken in this regard. As candidly acknowledged by Crown counsel before this court, this is not an unreasonable verdict case. The Crown’s appeal rested on the assertion that the trial judge erred in law because he failed to discharge his duty to provide adequate reasons in accordance with Sheppard. [49] As I have indicated, the failure to provide adequate reasons does not provide a ‘stand-alone’ ground of appeal. However, Sheppard confirms that an error of law may arise where the deficiencies in a trial judge’s reasons prevent meaningful appellate review of the correctness of the trial judge’s decision. An error of law is also committed where the trial judge fails to appreciate or consider relevant evidence based on a misdirection concerning an applicable legal principle: R. v. Morin, [1992] 3 S.C.R. 286 at paras. 17-18 and 22, 76 C.C.C. (3d) 193 at 199-201; R. v. B. (G.), [1990] 2 S.C.R. 57, 56 C.C.C. (3d) 181 at 193-95; Harper v. The Queen, [1982] 1 S.C.R. 2 at 14, 65 C.C.C. (2d) 193 at 210. As I discuss later in these reasons, the Crown submits that the record here reveals a failure by the trial judge to consider the evidence of Officer Dunn. (ii) Particular Legal Considerations [50] I agree with the appellant that where the verdict challenged on appeal is an acquittal, particular legal considerations inform the assessment of the sufficiency of the reasons for the acquittal. [51] The decision of the Supreme Court of Canada in R. v. Biniaris, [2000] 1 S.C.R. 381, 143 C.C.C. (3d) 1 is instructive in this regard. Biniaris holds that an appeal against conviction for an indictable offence on the ground of unreasonable verdict is a question of law within the meaning of s. 686(1)(a)(i) of the Code. In Biniaris, Arbour J. considered whether this affected the scope of the Crown’s right of appeal with respect to indictable matters, restricted by s. 676(1)(a) to questions of law alone. She concluded that the Crown’s right of appeal was not expanded to include ‘unreasonable acquittals’ and that there was no anomaly in this result. She explained (at para. 33): [A]s a matter of law, the concept of ‘unreasonable acquittal’ is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt…Since, different policy consider-ations apply in providing the Crown with a right of appeal against acquittals, it seems to me that there is no principle of parity of appellate access in the criminal process that must inform our interpretation of this issue [emphasis added and citations omitted]. [52] These “different policy considerations” include fundamental principles of the criminal law. In our criminal justice system, the accused is entitled to the presumption of innocence and the Crown bears the burden of proving the guilt of an accused beyond a reasonable doubt. In a criminal case, absent a statutory provision that places an onus upon the accused, the rebuttable presumption of innocence always applies. See R. v. Lampard, [1969] S.C.R. 373 at 380-381, 3 C.C.C. 249 at 256; R. v. Schuldt, [1985] 2 S.C.R. 592 at 610, 23 C.C.C. (3d) 225 at 237-8; R. v. Newman (1995), 99 C.C.C. (3d) 275 (Que. C.A.). [53] These cardinal principles of the criminal law must inform any analysis of the sufficiency of reasons for an acquittal in a criminal case. That said, in all criminal cases, the trial judge’s reasons, or the record as a whole (including the reasons), must satisfy the purpose for which the requirement of reasons is imposed, as articulated in Sheppard. The basis for the trial judge’s decision must be plainly apparent. (3) Question of Prejudice to the Crown’s Right of Appeal [54] Although it cannot be said that the trial judge gave no reasons for decision in this case, his reasons consist merely of a recital of the nature of the charges against the appellant and an agreement with and adoption of the defence submissions at trial. [55] The issue is whether these reasons meet the Sheppard duty for adequate reasons. In the words of Binnie J. in Sheppard at para. 55, in the particular circumstances of this case, do the reasons provide a decision that “is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision”? [56] The answer to this question is ‘no’. Indeed, in my view, the reasons in this case are a far cry from the type of reasons contemplated under the Sheppard standard. I say this for the following reasons. [57] Apart from identifying the charges faced by the appellant, the trial judge’s reasons consist only of an expression of agreement with and an adoption of the defence submissions at trial. The appeal judge was properly critical of this approach. She correctly noted that this court has previously cautioned against and warned of the dangers inherent in a trial judge’s adoption of the submissions of the Crown in their entirety, because of the miscarriage of justice concerns that thereby arise: see R. v. Dastous, (2004), 181 O.A.C. 398 at para. 3 and R. v. Gaudet (1998), 125 C.C.C. (3d) 17 at para. 55. I agree with the appeal judge that these concerns may also arise where a trial judge simply adopts defence submissions in their entirety. Consequently, this ‘incorporation by reference’ approach to reasons ordinarily should be avoided. [58] That said, as this court recently confirmed in Canada (Attorney General) v. Ni-Met Resources Inc., [2005] O.J. No. 1169 at para. 26: [T]here are cases where the issue is so clearly defined and argued by the parties that the purpose of giving reasons will be met if the judge simply adopts the submissions advanced by one of them. So long as the losing party is able to determine why he or she has lost and is not deprived of meaningful appellate review, the Sheppard test will be satisfied. [59] In this case, in my view, the Crown’s right to meaningful appellate review was frustrated because the reasons of the trial judge fail to explain the basis for the acquittals. [60] On the defence theory, at least two routes to acquittal on the impaired charge were open to the trial judge. First, the trial judge could conclude that the appellant did not exhibit the signs of impairment alleged by the Crown on the night in question or that the evidence gave rise to a reasonable doubt in this regard. Alternatively, the trial judge could accept that although the appellant displayed signs of impairment, these were fully explained by innocent factors or that those factors, considered with all the evidence, gave rise to a reasonable doubt concerning the causes of her indicia of impairment. [61] The critical question is not whether the defence positions were inconsistent or whether the defence advanced conflicting theories, as asserted by the Crown at trial and before this court. Rather, the relevant question is whether the trial judge’s reasons adequately reveal the findings made by him that were necessary, as a matter of law, to support his conclusion that acquittals were warranted in this case. In my view, they do not. [62] By themselves, the reasons of the trial judge provide no support for the conclusion that he conducted an independent review of all the evidence, including making credibility assessments, or that he carefully considered both the defence and Crown submissions at trial; nor do they offer any assurance that the respective positions of the parties at trial were understood and addressed by the trial judge before he reached his conclusion. His reasons afford virtually no insight into his reasoning process; nor do they inform the reader of the basis for the acquittals save for his blanket adoption and endorsement of the defence submissions. [63] The parties to a criminal trial and the public are entitled to know the basis for an acquittal as determined by the trial judge. Although an acquittal is predicated on a conclusion by the trial judge that a reasonable doubt as to the accused’s guilt arises in the circumstances, this conclusion is not immune from appellate scrutiny to determine whether it is tainted by an error in law. This is particularly the case where the reasons for an acquittal reflect mere adoption of defence submissions made at trial. [64] However, under the functional test in Sheppard, the relevant inquiry is whether the reasons for judgment, in the context of the entire record, afford a meaningful right of appeal. Where, as here, the reasons for an acquittal are deficient, the acquittal must still be sustained if the record as a whole reveals the basis for the acquittal. In Sheppard, Binnie J. stated (at para. 46): [T]he duty to give reasons, where it exists, arises out of the circumstances of a particular case. 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. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention [emphasis in original]. [65] Justice Binnie thus identified three categories of cases where deficient reasons, or the absence of any reasons, may result in an error of law justifying appellate intervention: (1) where the path taken by the trial judge through confused or conflicting evidence is not at all apparent; (2) where there are difficult issues of law that need to be confronted, but which the trial judge has “circum-navigated without explanation”; or (3) where there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error. [66] The Crown submits that the first and third categories are implicated in this case. There is no suggestion that difficult issues of law arose here, engaging the second category. (i) Over-80 Charge [67] The Crown’s burden of proving its case against the appellant on the over-80 charge was assisted by evidentiary presumptions set out in ss. 258(1)(c) and 258(1)(d.1) of the Criminal Code. Absent any evidence tending to show that the results of the breathalyzer tests were wrong, the results were proof of the appellant’s blood alcohol concentration levels at the time of the over-80 offence and, as the results exceeded 80 milligrams of alcohol in 100 millilitres of blood, proof of the over-80 charge. [68] The appellant mounted a ‘Carter defence’ to the over-80 charge. [2] If the trial judge accepted the appellant’s evidence and that of her niece regarding the appellant’s alcohol consumption on the night in question, or if that evidence raised a reasonable doubt in his mind, the trial judge could couple that finding with Dr. Corbett’s opinion evidence and conclude that there was evidence tending to show that the appellant’s blood alcohol levels at the time of the offence did not exceed the legal limit, thus rebutting the presumptions. [69] The sole issue for the trial judge on the over-80 charge was whether the evidence led by the appellant in support of her Carter defence was sufficient to give rise to a reasonable doubt as to the reliability of the breathalyzer test results. [70] In his closing submissions at trial, defence counsel pointed out that the appellant’s evidence and that of her niece regarding the appellant’s alcohol consumption at the relevant times were central to the determination of the appellant’s guilt on the over-80 charge. He urged the trial judge to accept this evidence or to conclude that it gave rise to a reasonable doubt as to the appellant’s guilt on the over-80 charge. [71] In contrast, as I have mentioned, Crown counsel argued that the appellant’s testimony, including her evidence of her alcohol consumption, was incredible and, consequently, that there was an insufficient evidentiary foundation to support Dr. Corbett’s expert evidence. The Crown, of course, also emphasized the results of the two breathalyzer tests. [72] Thus, the appellant’s credibility and that of her niece on the key question of the appellant’s alcohol consumption were squarely in issue and were emphasized by both counsel in their final submissions to the trial judge. [73] But the trial judge’s reasons contain no express mention of any assessment of the credibility of the appellant or her niece; nor do they reference the critical evidence of the breathalyzer technician and the competing evidence of Dr. Corbett. [74] In R. v. Maharaj, supra, Laskin J.A. of this court stated at para. 20: Trial judges have a duty to give reasoned reasons for their decisions. This duty applies to their credibility assessments as much as to their fact finding and legal analysis. In some cases, the failure to explain or justify a credibility finding may disentitle a trial judge to the appellate deference ordinarily accorded these findings. [75] In this case, without at least some explanation from the trial judge as to his assessment of the evidence on the over-80 charge, it cannot be said that the record clearly indicates the basis for the acquittal on this charge, or that the ‘path’ taken by the trial judge through the evidence is plainly apparent. Accordingly, the acquittal on the over-80 charge cannot stand. (ii) Impaired Charge [76] The Crown relies on the proposition that an error of law occurs where the trial judge disregards or fails to consider relevant evidence. The Crown argues that because the trial judge simply adopted the final defence submissions at trial, it is unclear whether he considered and weighed the Crown’s evidence regarding the appellant’s alleged indicia of impairment, including Officer Poliak’s claim that this was one of the worst impaired cases that he had seen in his experience arresting impaired drivers. In addition, because the trial judge’s reasons and the defence final submissions at trial, as adopted by the trial judge, fail to mention the evidence of Officer Dunn, the Crown also submits that the trial judge failed to consider Officer Dunn’s evidence of impairment. [77] The mere failure to mention relevant evidence, by itself, does not constitute an error of law. Recently, in applying the Sheppard standard to the assessment of the sufficiency of reasons for a conviction, this court stated in R. v. T.C. (2005), 193 O.A.C. 106 at para. 45: [A] trial judge need not mention every piece of evidence that supports his or her conclusion or address every piece of evidence that may not support that conclusion, as long as it is clear that the trial judge heard and considered all of the evidence in coming to his or her conclusions of fact and law [citation omitted]. [78] Similarly, in Morin, supra, at para. 20, the Supreme Court of Canada observed: There is, however, no obligation in law on a trial judge to record all or any specific part of the process of deliberation on the facts. … A trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect. These comments in Morin pre-date, but are not displaced by, the Supreme Court’s subsequent decision in Sheppard. See also the decision of this court in Waxman v. Waxman, [2004] O.J. No. 1765 at para. 283, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 291. [79] Thus, the trial judge’s failure to expressly mention the evidence of one or more witnesses in his reasons is not reversible error per se. However, the trial judge was obliged to hear and consider all the evidence concerning the impaired charge in arriving at his decision to acquit the appellant on this charge especially where, as here, the evidence of impairment was starkly conflicting. [80] But the trial judge’s reasons are completely silent as to the evidence that he considered, the weight attached by him to the evidence that he did consider, and his assessment of the conflicting evidence on the central issue of the appellant’s impairment. [81] Admittedly, this was a straightforward case. The evidence at trial was not lengthy or complex. There was no dispute as to the requisite elements of the impaired charge. The issues were clearly delineated and the outcome depended solely on the trial judge’s appreciation of the evidence. [82] However, the evidentiary phase of this trial was conducted over a period of nine months: Officer Poliak testified on December 18, 2002, Officers Gill and Dunn testified on February 11, 2003 and the defence witnesses testified on September 4, 2003. [83] When Dr. Corbett, the last defence witness, completed his evidence, counsel for the parties proceeded immediately to make their final submissions. Those submissions were comprehensive and lengthy. They depicted very different pictures of the conflicting evidence concerning impairment. [84] The trial judge, without a recess or adjournment of the proceedings, then promptly gave his oral reasons for judgment, saying, in effect: “I agree with the defence and I acquit the accused.” He said nothing about the conflicts in the evidence, counsels’ submissions or his assessments of credibility. Simply put, he provided no signal as to the basis for his decision, save for his wholesale and generic adoption of defence counsel’s final submissions. [85] In R. v. R. (D.), supra, at para. 55, the Supreme Court of Canada indicated, “[W]here there is confused and contradictory evidence, the trial judge should give reasons for his or her conclusions.” This did not occur here. [86] Nor was Binnie J.’s instruction in Sheppard at para. 33, that it is incumbent on “trial judges to state more than the result”, heeded in this case. To the contrary, the trial judge’s reasons are bald and conclusory. [87] Moreover, the conduct of this trial made it especially important that the trial judge explain the basis for his verdicts of acquittal. The trial took place, as I have said, on isolated days over many months. The intermittence of the trial itself warranted greater elucidation by the trial judge of his reasoning process: see Maharaj at para. 28 and R. v. Brown (2003), 61 O.R. (3d) 619 (C.A.) at para. 28. [88] Nor is it any response to argue, as the appellant submits, that the trial judge’s agreement with defence counsel’s submissions implicitly indicates his view that the evidence of the defence witnesses, coupled with the evidence of the videotape of the appellant generated at the police station, gave rise to a reasonable doubt whether the appellant’s ability to operate a motor vehicle was impaired by alcohol at the critical time. With respect, on this record, this is sheer speculation. The trial judge simply did not deal with these matters, or with the Crown’s conflicting evidence. [89] In light of the strength of the Crown’s case on the impaired charge, the conflicting evidence on impairment adduced at trial, the intermittent nature of the conduct of this trial and the fulsome final submissions of both counsel, it is not possible to say in this case, as Sheppard requires, that the basis for the trial judge’s acquittal of the appellant on the impaired charge is plainly apparent. Accordingly, in my view, the Crown’s right to meaningful appellate review of the acquittal on this charge was compromised. (4) Conclusion [90] I conclude by reiterating that Sheppard establishes a functional test for the assessment of the adequacy of reasons. A determination of the sufficiency of reasons cannot be severed from this functional test. Thus, the sufficiency of reasons is to be measured in the context of the record as a whole to determine whether the reasons permit meaningful appellate review of the correctness of the trial decision. As the Supreme Court of Canada recently indicated in R. v. Zinck, [2003] 1 S.C.R. 41 at paras. 37 and 39, at the end of a criminal trial, the parties are entitled to reasons, the reasons need not be elaborate, and they “must be viewed as a whole and read in connection with the evidence and the submissions made at the hearing”. [91] But Sheppard also confirms, and illuminates, the fundamental duty of trial judges, including judges engaged in the busy and important work of hearing criminal cases, to explain their decisions to the affected parties and the public in order that the correctness and justice of those decisions be transparent. This is the business and the obligation of judges. The integrity of the administration of justice requires no less. Trial judges in this country meet this challenge, with considerable skill and dedication, on a daily basis. Regrettably, this case is an exception. IV. Disposition [92] For the reasons given, I would grant leave to appeal and dismiss the appeal. “E.A. Cronk J.A.” “I agree J.C. MacPherson J.A.” SHARPE J.A (Dissenting): [93] I respectfully disagree with my colleague Cronk J.A. that this appeal should be dismissed. As my colleague has fully stated the facts, I will proceed directly to explain why I would allow the appeal and restore the acquittals. [94] In my view, the resolution of this appeal rests on two fundamental points. [95] First, while R. v. Sheppard, [2002] 1 S.C.R. 869 recognizes a general duty of trial judges to provide adequate reasons for their decisions, the Sheppard functional test clearly restricts appellate intervention to cases where the deficiency in the reasons prevents meaningful appellate review. The issue before us is not the adequacy of the trial judge’s reasons measured against some general standard to which the administration of justice quite properly aspires, but whether the deficiencies in the reasons impaired the Crown’s right to meaningful appellate review. As Binnie J emphasized throughout his reasons in Sheppard, and in particular at para. 53, when it comes to appellate intervention, the duty to give reasons “should be given a functional and purposeful interpretation” and the failure to live up to the duty does not provide “a free-standing right of appeal” or “in itself confer entitlement to appellate intervention”. [96] Second, fundamental principles of our criminal law, in particular, the presumption of innocence and the requirement on the Crown to prove the guilt of the accused beyond a reasonable doubt, affect the nature of reasons required to sustain an acquittal from the perspective of meaningful appellate review. In my view, the nature of reasons required to afford meaningful appellate review of acquittals differs markedly from the nature of reasons required to afford meaningful appellate review of convictions. [97] To sustain a conviction, the presumption of innocence must be displaced and guilt must be established beyond a reasonable doubt on the basis of clearly articulated factual findings. The trial judge must provide a reasoned decision explaining the basis for the factual findings necessary to justify a conviction, explaining why evidence is accepted, rejected or fails to raise a reasonable doubt. [98] Acquittals, on the other hand, often rest on the presumption of innocence and on the failure of the Crown to establish guilt beyond a reasonable doubt. Factual findings are not required to sustain an acquittal. On the contrary, it is precisely when the evidence is not sufficient to prove the guilt of the accused beyond a reasonable doubt that the accused is entitled to an acquittal. A reasonable doubt need not rest upon the same sort of foundation of factual findings that is required to support a conviction. A reasonable doubt arises where an inadequate foundation has been laid. [99] This is not to say that a trial judge is relieved of the duty to provide clear reasons for acquittal. Binnie J.’s statement in Sheppard at para. 53 that “giving reasons is part of the job of a professional judge and accountability for the exercise of judicial power demands no less” applies with equal force to reasons for acquittal. But it is clear from Sheppard that appellate review is not defined by the norms of professional duty or judicial accountability. From the perspective of appellate review, as Binnie J. explained at para. 42, “the duty to give reasons is driven by the circumstances of the case rather than abstract notions of judicial accountability.” [100] Applying these principles to the circumstances of this case, I conclude that despite the obvious inadequacies of the trial judge’s reasons, the Crown failed to demonstrate that those inadequacies prevent meaningful appellate review in this case. As I read Sheppard, at para. 46, we are to read the reasons in light of the record to determine whether there is an impediment to appellate review: [T]he duty to give reasons, where it exists, arises out of the circumstances of a particular case. 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. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function [italicized emphasis in original; bold emphasis added]. [101] In my view, when read in light of the record, the deficiencies in the trial judge’s reasons did not preclude the appeal court from properly carrying out its appellate function in the circumstances of this case. This was a straightforward case in which the issue was whether or not the Crown had proved its case against the accused beyond a reasonable doubt. With respect to the impaired driving charge, the sole issue for the trial judge was whether or not the Crown had proved beyond a reasonable doubt that the accused was impaired. With respect to the over-80 charge, the Crown had the benefit of the evidentiary presumption of ss. 258(1)(c) and 258(1)(d.1), but the Crown still bore the burden of proving guilt beyond a reasonable doubt and the sole issue was whether or not the “evidence to the contrary” gave rise to a reasonable doubt as to the reliability of the breathalyzer tests. [102] To convict the appellant, the trial judge would have been obliged to make certain factual findings against her. To acquit her, he did not have to make factual findings in her favour. He simply had to have a reasonable doubt as to her guilt. I disagree with Cronk J.A. who suggests that to acquit the appellant, the trial judge was obliged to select a particular route to acquittal or that he was obliged to make “findings” in her favour. In my view, that misstates what is required to justify an acquittal. To acquit the appellant, the trial judge simply had to decide that, on the whole, as submitted by defence counsel, there were weaknesses in the Crown’s evidence and that the Crown had failed to prove its case beyond a reasonable doubt. This is the only “finding” he was required to make. His brief reasons, however inadequate, adopted the position of defence counsel and thereby indicated that he decided that the Crown’s case did not demonstrate the respondent’s guilt beyond a reasonable doubt. One hardly need extol the virtues of the presumption of innocence until guilt is proven beyond a reasonable doubt. It is the “golden thread” of our criminal justice system and “essential in a society committed to fairness and social justice”: R. v. Oakes, [1986] 1 S.C.R. 103. If the Crown’s case does not establish guilt beyond a reasonable doubt in the mind of the trier of fact, the accused must go free. In my respectful view, Cronk J.A.’s analysis, holding that the Crown can appeal an acquittal where the trial judge fails to make factual “findings” and articulate a particular path to justify the acquittal, represents a subtle erosion of the presumption of innocence and the requirement of proof beyond a reasonable doubt. [103] Before this Court, counsel for the Crown conceded that the reasonableness of the verdict was not at issue. That was a proper concession to make in the context of this case. In my view, however, it was fatal to the Crown’s appeal, based as it was on the inadequacies of the trial judge’s reasons. Simply put if, as the Crown concedes, it cannot challenge the reasonableness of the verdict, I fail to see any other ground of appeal in this case for which the deficiencies in the trial judge’s reasons deprived the Crown of meaningful appellate review. When pressed in oral argument to specify such a ground of appeal, counsel for the Crown submitted that the trial judge’s reasons indicated that he had failed to consider the evidence of Officer Dunn. However, as pointed out by Cronk J.A., the mere failure to mention relevant evidence does not constitute an error of law and, in any event, reference to counsels’ closing submissions makes this argument untenable. [104] The Crown is unable to demonstrate how the inadequacy of the trial judge’s reasons impedes meaningful appellate review on the facts of this case. It follows that the Crown has failed to make out a case for appellate intervention on the Sheppard functional test for the adequacy of reasons. [105] I do not condone the practice followed by the trial judge of simply adopting counsel’s submissions from the perspective of judicial craftsmanship. However, our task is not to give the trial judge’s reasons a passing or failing grade. We are restricted to determining whether the deficiencies in his reasons impede meaningful appellate review in the case before us. As I have concluded that they do not, I would grant leave to appeal, allow the appeal and restore the acquittals at trial. RELEASED: “JUN 16 2005” “JCM” “Robert J. Sharpe J.A.” [1] Section 830 of the Code maintains a right of appeal in summary matters restricted to questions of law and jurisdiction similar to the former appeal by way of stated case. This little used procedure is not in issue in this case. [2] In Carter, supra, this court held that a qualified expert’s testimony concerning an accused’s imputed blood alcohol concentration level, based on acceptance of the accused’s stated alcohol consumption, constituted ‘evidence to the contrary’ within the meaning of the evidentiary presumption under the predecessor section to s. 258(1) of the Code such that, if the expert evidence raised a reasonable doubt, it would lead to an acquittal on an over-80 charge. In Heideman, supra, at para. 6, this court considered the nature of the evidence required to rebut the presumption in s. 258(1)(d.1), which was added to the Code after Carter was decided. The Heideman issue does not arise in this case because the expert evidence indicates that if the defence evidence was accepted, the appellant’s blood alcohol level would be below .08.