In the United States it is common for trial judges to complain about appellate courts; reverse me but do not remand or do not reverse me for more findings since I made up all the findings I could the first time. One very colorful trial judge once told a Minnesota Supreme Court Justice you cannot make chicken salad out of chicken shit.  But the concern about finding and an adequate explanation is not peculiar to the United States. After the Supreme Court of Canada’s decision in R. v. Vuradin, 2013 SCC 38, it may have been thought that lack of reasons as a ground of appeal had been extremely restricted.  However, this has not turned out to be the case.  Consider the following example.

In R. v. BROWN; R. v. REID, 2013 ABCA 289, August 23, 2013, the two accused were convicted of second degree murder after a trial before a judge sitting alone.  The deceased was shot after an argument at a casino.  Both accused appealed from conviction.  Brown’s appeal was dismissed, but Reid’s was allowed and a new trial ordered.  Reid argued, in part, that the trial judge failed in his reasons to address the essence of his defence.

At the trial, two security personnel provided evidence of the “shooter” possibly being someone other than Reid.  Reid argued that this evidence should have caused the trial judge to have had a reasonable doubt concerning his involvement in the shooting. The Alberta Court of Appeal noted that “nowhere in his reasons did the trial judge even advert to this theory much less respond to and deal with it.”

The Court of Appeal indicated, at paragraph 52, that appellate courts “are to consider the sufficiency of a trial judge’s reasons as a whole, in the context of the evidence, the arguments and the trial and with an appreciation of the purpose or function for which they are delivered” and that the Supreme Court of Canada said in REM that what is required is that “the trial judge’s reasons, when read in the context of the record and the submissions on the live issues in the case, ‘show that the judge has seized the substance of the matter.’”

In this case, the Alberta Court of Appeal concluded that “while the trial judge’s reasons did seize upon ‘the substance of the matter’ as it relates to the Crown’s case against Brown, the same cannot be said with respect to the case against Reid.  Nowhere did the trial judge deal with the theory being advanced by Reid’s counsel that the testimony of the two security guards raised a reasonable doubt regarding his client’s guilt.  Rather the trial judge dismissed their testimony in a very summary fashion.”

The Court of Appeal held that its earlier comments in R v Bisaro, 2010 ABCA 90, 477 AR 385 at paragraph 20, were “therefore apropos”:

One appropriate reasoning process in a case where the Crown calls evidence that on its face exonerates the accused is the approach to defence evidence in R. v. W. (D.), [1991] 1 S.C.R. 742. Although the order of considering the evidence is the option of the trial judge, the judge must explain why the evidence is not believed and why it does not raise a reasonable doubt as well as moving on to a consideration of the other Crown evidence. In this case, these belief and doubt steps were missed. As a result, the proof beyond a reasonable doubt test was not applied.