How Direct Should a Trial Judge Be in Written Opinions?

It is often difficult for a trial judge to be blunt in written opinions. “The police officers’s description of what happened is simply not credible” are words that do not frequently appear. So, perhaps there is a lesson for all judges in an opinion from Canada:

In R. v. Kennedy, 2015 SKCA 32, April 8, 2015, the accused was convicted of the offense of assault with a weapon. The complainant (Mr. Cheon) testified that the accused was the person who assaulted him.  The accused denied doing so and argued the complainant was lying based upon a prior dispute.  

The trial judge cautioned herself concerning the frailties of eye-witness evidence and concluded that the evidence provided by the accused was “vague and evasive.” 

The accused appealed from the conviction, arguing that the trial judge’s reasons were insufficient.

In convicting the accused the trial judge reviewed Mr. Cheon’s testimony. The Saskatchewan Court of Appeal noted that “the trial judge listed various factors that she saw as either detracting from or supporting its weight.”  However, the Court of Appeal also noted that at “no point in her decision did the trial judge speak to, or consider, the question of Mr. Cheon’s credibility. In our respectful view, this was a significant oversight given the defence theory that Mr. Cheon was not telling the truth about the identity of his attacker and given defence counsel’s submission that Mr. Cheon was attempting to get Mr. Kennedy into criminal law difficulties just as the evidence suggested he had done on an earlier occasion.”

The Court of Appeal concluded that this required the ordering of a new trial (at paragraph 41):

In short, given the defence theory in this case, and given the nature of the evidence before her, it was incumbent on the trial judge to deal directly with the question of Mr. Cheon’s credibility. Her failure to do so means the trial decision was not responsive to the central argument of the defence or to the “live issues” in the case. See: R v Dinardo, 2008 SCC 24 (CanLII) at para 25, [2008] 1 SCR 788. It also means that it is not possible for this Court to properly discharge its appellate review function.

1 thought on “How Direct Should a Trial Judge Be in Written Opinions?

  1. Many years ago I was in a Judge Orientation Program, aka Baby Judge School. A Supreme Court Justice told us all that when making a record at the trial level we should always discuss what was going through our minds and always address the credibility all witnesses. It was her thought that when you do this, your likelihood of an appeal of your decision will decrease substantially. I used that advice as a rule of thumb throughout my Judicial career and had the record for the least appealed trial judge on my bench.

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