DELAYED AND EDITED REASONS

In R. v. R.C., 2021 ONCA 419, June 15, 2021, the accused was convicted of a number of offences, including sexual assault and incest. The trial judge rendered an oral judgment and indicated that he would subsequently “include excerpts of the questions and answers verbatim from the transcript to illustrate my areas of concern [with the accused’s evidence]”.

Two years later, and after an appeal from conviction was filed, the trial judge released edited reasons for the convictions. In his appeal from conviction, the accused argued, in part, that the trial judge “provided insufficient reasons”.

The appeal was dismissed.

The Ontario Court of Appeal described “the changes in the Edited Reasons” as being “both extensive and substantive” (at paragraph 9).

Delayed and Edited Reasons:

The Court of Appeal noted that a trial judge’s “reasons are presumed to be an accurate reflection of the reasoning that led the trial judge to the decision. That presumption, while strong, can be rebutted by cogent evidence. For example, reasons given long after a verdict was rendered and subsequent to the commencement of an appeal, can compel the conclusion that the reasons are not an accurate reflection of the decision-making process engaged in by the trial judge and that the trial judge engaged instead in a result-driven consideration of the evidence. This is particularly true where – as here – the reasons were rendered after an appeal had been commenced” (at paragraph 10).

The Court of Appeal held that in this case, the “presumption of validity has been rebutted in this case by virtue of the substantive changes made in the Edited Reasons…The Edited Reasons therefore cannot be relied upon to justify the convictions. However, the Oral Reasons remain intact. The appellant does not argue those reasons do not reflect the trial judge’s reasoning process. Instead, the appellant argues that reasoning process is legally flawed. The outcome of the appeal turns on those arguments” (at paragraphs 12 and 13).

Conclusion:

The Court of Appeal pointed out that though trial judges “are not required to address every inconsistency in the evidence of a witness [they are] “obliged to explain how they resolve major inconsistencies. Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a ‘carelessness about the truth’ while inconsistencies about peripheral issues are of less significance” (at paragraph 37).

In dismissing the appeal, the Ontario Court of Appeal concluded that the trial judge’s reasons were “sufficient to disclose an intelligible basis for the verdict” (at paragraphs 57 and 58):

While his explanation of how he assessed the complainant’s testimony thereafter was brief, the trial judge, while recounting her evidence in the Oral Reasons, provided some evaluation of its strength. He addressed the two material inconsistencies identified on appeal. Although there were several other inconsistencies in her evidence, he adverted to these inconsistencies in reviewing the evidence and, in my view, his reasons fairly characterized these inconsistencies as minor.

Given the considerable deference afforded trial judges when deciding issues of credibility, the fact that the trial judge did assess the material inconsistencies in both the appellant and the complainant’s evidence and provided some reasons for resolving the inconsistencies, when read in context, the Oral Reasons are sufficient to disclose an intelligible basis for the verdict. They reveal no uneven scrutiny of the evidence nor do they demonstrate a misapprehension of the Crown’s burden.