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


In R. v. Brown, 2021 ONSC 6376, September 27, 2021, the accused was acquitted of the offence of operating a motor vehicle while impaired by a drug.  In acquitting the accused of the offence, the trial judge rendered an oral decision in which she stated:

First of all, I am allowing the Charter Application and excluding the evidence of the blood samples and the analysis by the toxicologist at the Centre of Forensic Sciences. So, that removes that important piece of evidence from the case.

With the evidence that remains, there is certainly some evidence that you may have been impaired by drugs but I am left with a reasonable doubt about that. So, you are entitled to an acquittal based on a reasonable doubt.

 I will say this, sir, I do not know whether your condition was due to fatigue or drugs, or both but you had no business being behind the wheel that day. You cannot be driving in a condition, for whatever reason, that you are passed out behind the wheel in live traffic with the radio blaring.

After rendering the verdict, “the trial judge emailed Crown and defence counsel… asking if they wanted to make further submissions to her” in relation to R. v. Tahmasebi, 2020 ONCA 47, which was rendered post-judgment. Both the Crown and defence counsel declined the trial judge’s offer.

The trial judge subsequently filed a written decision.

The Crown appealed from the acquittal. The appeal was allowed and a new trial ordered. 

The appeal court noted that the Crown and defence counsel agreed that “the trial judge’s communications with counsel post-verdict and the substance of her subsequent written reasons suggest that she was open to being persuaded that the verdict delivered on January 21, 2020 was wrong or could be overturned.  They agree that a reasonable person would apprehend that the written reasons do not reflect the trial judge’s decision at the time the verdict was rendered, but rather appear to be ‘results-based’ – an effort to defend the verdict, rather than an articulation of how it was arrived at” (at paragraph 6).

In ordering a new trial, the appeal court judge agreed with counsel’s submission that “this court, sitting as a summary conviction appeal court, is precluded from considering the trial judge’s written reasons when addressing the merits of the appeal.  See R. v. Teskey, 2007 SCC 25. They further agree that the brief oral reasons given January 21, 2020 are impervious to appellate review and do not meet the test for sufficiency of reasons articulated in R. v. Sheppard, 2002 SCC 26.  They jointly submit that the appeal must be granted, the acquittal set aside and a new trial ordered in the Ontario Court of Justice before a different trial judge” (at paragraph 7).