Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Eheler, 2021 BCCA 316, the accused were convicted of possessing cocaine for the purpose of trafficking, contrary to section. 5(2) of the Controlled Drugs and Substances Act.  They appealed from conviction, arguing, in part, that a new trial should be ordered because it took the trial judge three years to issue a written decision after verbally dismissing their application to challenge the validity of a search warrant utilized by the police in their case.

The appeal was allowed and ordered a new trial.

The British Columbia Court of Appeal noted that after dismissing the accused’s application, the trial judge “said that reasons would follow. Reasons for judgment… were not delivered until October 27, 2020, more than three years after the date upon which the ruling was pronounced…When reasons for judgment were delivered, the judge was aware that appeals had been launched, and that the standing ruling and absence of reasons for that ruling were important issues on appeal” (at paragraph 17).  

The Court of Appeal indicated that “the analysis required under this ground of appeal focuses on whether the totality of circumstances would cause a reasonable person to apprehend that the rationale underlying the result was formed after the decision was pronounced, and that the reasons are, even subconsciously, the product of a judicial mind committed to justifying that result. These concerns will be heightened when the passage of time between the pronouncement of judgment and the delivery of reasons is substantial, and the judge is aware that an appeal has been launched when reasons are issued” (at paragraph 105).

In ordering a new trial, the Court of Appeal concluded that rebut the delay rebutted the “presumption that the reasons truly reflected the reasoning process that led to the judge’s decision to deny the appellants standing to challenge the admissibility of evidence obtained in the warranted search of Suite 401. In the result, I would disregard the reasons offered in support of the standing ruling. In the absence of reasons, there is no meaningful opportunity for appellate review of the correctness of that ruling” (at paragraph 114).