Supreme Court questions time lag of judge's written decision

Globe and Mail Update

TORONTO — An Alberta trial judge took so long to produce written reasons underlying a criminal conviction that their accuracy cannot be relied on, the Supreme Court of Canada ruled today.

A 6-3 majority said that an ordinary person could rightly be suspicious that a trial judge who takes that long to produce a decision could be taking other factors into consideration.

“In the particular circumstances of this case, I conclude that a reasonable person would apprehend that the trial judge's written reasons – delivered more than 11 months after the verdict was rendered – did not reflect the real basis for the convictions,” the majority said.

“Without this requisite link between the verdict and the reasoning that led to that verdict, the reasons provide no opportunity for meaningful appellate review of the correctness of the decision,” Madam Justice Louise Charron wrote for the majority. “Hence, the written reasons should not have been considered on appeal.”

The case involved Leo Matthew Teskey, who was charged in 2001 with aggravated assault, break and enter, and theft. Following a five-day trial that ended in October, 2001, the trial judge reserved his decision.

Crown evidence used against Mr. Teskey included two questionable photo line-ups involving a witness who claimed to have seen the accused man sleeping in an apartment stairwell shortly before the victim was beaten.

The eyewitness, Jason Adams, initially identified the wrong man. At the second line-up, his identification of Mr. Teskey was uncertain. Other evidence in the trial was equally open to attack.

On Feb. 22, 2002, the trial judge – Provincial Court Judge J.B. Kerby – gave brief oral reasons in convicting Mr. Teskey on all three charges. He said little more than that the Crown had proved the essential elements of the offence beyond a reasonable doubt.

Judge Kerby announced that he would deliver written reasons, “within a short period of time.” The Crown then advised the court that it was going to bring an application to have Mr. Teskey declared a dangerous offender. A month later, Mr. Teskey appealed his convictions. Amongst his 11 grounds of appeal was one complaining that “the number of adjournments required by the trial judge to determine guilt demonstrates reasonable doubt.”

When the trial judge ultimately produced his reasons for judgment, he noted that the identification evidence was the ‘cornerstone' of the prosecution, and concluded that the police showed no bad faith in the way they conducted the photo lineup.

A 2-1 majority of the Alberta Court of Appeal upheld the convictions. The majority observed that the evidence was “complex, almost entirely circumstantial and contained some contradictions. It cried out for analysis.”

They said that while Judge Kerby's oral reasons had been insufficient, his written reasons were adequate even though they were extremely late.

However, the dissenting judge on the Alberta Court of Appeal concluded that a reasonable person could conclude that Judge Kerby's reasons had been tailored specifically to blunt the grounds of appeal Mr. Teskey had raised.

The Supreme Court majority agreed with that dissenting judge today, saying: “In all cases, a trial judge should be mindful of the importance that justice not only be done but that it appear to be done. The circumstances of this case exemplify the kind of issues that can arise when the announcement of the verdict is divorced from the delivery of the reasons that led to it.”

Madam Justice Charron said that judges must be aware of how an ordinary person perceives the fairness of the justice system.

“Reasons rendered long after a verdict, particularly where it is apparent that they were entirely crafted after the announcement of the verdict, may cause a reasonable person to apprehend that the trial judge may not have reviewed and considered the evidence with an open mind as he or she is duty-bound to do but, rather, that the judge has engaged in result-driven reasoning,” she said.

“In other words, having already announced the verdict, particularly a verdict of guilt, a question arises whether the post-decision review and analysis of the evidence was done, even subconsciously, with the view of defending the verdict rather than arriving at it.”

In their dissenting reasons, Mr. Justice Michel Bastarache, Madam Justice Rosalie Abella and Madam Justice Marie Deschamps came to the defence of the trial judge.

“Issuing the reasons after a verdict does not mean that the verdict was not thought through before it was delivered,” Judge Abella said. “Reasons explain what a judge has decided to do and should be accepted as being honest reflections of that decision, whether delivered with or after the result, unless their content reflects the absence of judicial integrity.

“It is not clear to me at what point the trial judge's reasons in this case lost the benefit of the presumption of integrity,” the dissenting judge reasoned.

“When did he cross the line of propriety from acceptable delay to after-the-fact justification? What is an acceptable delay in the ordinary case? Unless some guidance is provided on the question of “how long is too long,” judges will be left with a great deal of uncertainty about when their reasons will be deemed to be “too late.”

The fact that reasons come after a verdict does not mean that the verdict wasn't properly thought through before it was delivered, they said: “Judges should be presumed to know the law and the nature of their judicial duties, including the duty to arrive at a verdict only after careful deliberation.”

They said that even inordinate delays should not result in a refusal by appellate courts to even consider the reasons. “Such an approach would do a greater disservice to the public perception of the integrity of the system than an undesirable delay.”