Professional tribunals are often notorious for taking a long time to give reasons for their decisions. There are a number of explanations for this including:

·        tribunal members are often not used to writing reasons and find it an extremely difficult task at the best of times,

·        tribunals usually sit in panels requiring a number of people to participate and approve the reasons,

·        tribunal counsel often review and comment on the reasons, further delaying the process,

·        tribunal members often have demanding careers which means that reasons are drafted in rare moments of spare time, and

·        some tribunals have administrative requirements before reasons can be released (e.g., translation, privacy reviews to remove identifying information of innocent participants, preparing to post them on the tribunal’s website, etc.).

A decision of the Supreme Court of Canada released earlier this month increases the legal risk for such delays. In R. v. Teskey, 2007 SCC 25 the Court reversed a finding against Mr. Teskey because of the delay between the oral pronouncement and the release of the reasons for that decision.

The Court’s concerns were threefold:

1.      In the circumstances it appeared that the reasons did not reflect the actual analysis of the evidence, which is their sole goal. The reasons appeared to have been influenced by other considerations.

2.      As a result, the reasons did not provide a reliable basis for an appellate court to review the decision.

3.      The delay cast doubts over whether the oral pronouncement reflected a full and proper consideration of all of the evidence.

Mr. Teskey was charged with aggravated assault, break and enter, and theft. The case against him consisted mostly of circumstantial evidence. Following a five-day trial the judge reserved his decision for a period of four months. The judge then made an oral pronouncement finding guilt on all three charges, indicating written reasons would follow. Mr. Teskey initiated an appeal. There were a number of delays in sentencing. The Court described the events as follows:

Extensive written reasons were eventually delivered … more than 11 months after the announcement of the verdicts…. In the written reasons, the trial judge provided a detailed explanation for the repeated adjournments that preceded the announcement of the verdicts. He also referred at length to the various adjournments on the subsequent dangerous offender application, up to the release of his reasons ….  However, he made no mention of counsel’s repeated requests for his written reasons and offered no explanation for the post-verdict delay in releasing them.

The Court noted the significance of the reasons in this particular case:

No one disputes that, in the circumstances of this case, it was incumbent upon the trial judge to give reasons to justify and explain the verdicts of guilt. This was particularly important given the relatively complex and circumstantial nature of the evidence presented against Mr. Teskey.  Mr. Teskey was entitled to know why he was convicted. The reasons were also necessary to inform the grounds of his appeal from conviction properly. Interested members of the public were also entitled to see for themselves whether justice was done here. Furthermore, in the particular context of the appeal, the reasons were necessary to provide a meaningful review of the correctness of the decision.

Those considerations apply to many tribunal decisions as well. The Court was prepared to accept that it is appropriate in many cases to pronounce one’s decision and render written reasons later. However, the Court indicated:

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. 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…. Further, if an appeal from the verdict has been launched, as here, and the reasons deal with certain issues raised on appeal, this may create the appearance that the trial judge is advocating a particular result rather than articulating the reasons that led him or her to the decision.

The circumstances of this case that persuaded the Court that the decision must be set aside included the following:

·        the trial judge’s obvious difficulty in arriving at a verdict in the months following the completion of the evidence;

·        the absolutely bare declaration of guilt without any indication of the underlying reasoning;

·        the trial judge’s expressed willingness to reconsider the verdicts immediately after their announcement;

·        the nature of the evidence that called for a detailed consideration and analysis before any verdict could be reached;

·        the failure of the trial judge to respond to repeated requests from counsel to give reasons;

·        the contents of the reasons referring to events long after the announcement of the verdict suggesting that they were crafted post-decision;

·        the inordinate delay in delivering the reasons coupled with the absence of any indication that his reasons were ready at any time during the 11 months that followed ….

In order to avoid having decisions reversed solely on the grounds that the reasons were delayed, tribunals should develop processes that facilitate rapid reason writing. Primarily this means that deliberations should be thorough and detailed (with notes made) so that the content of the reasons are readily available. Scheduling reason writing time shortly after the hearing is also useful. Sometimes assigning the actual writing of the reasons to one panel member (rather than trying to compose them as a group) can speed things up.

A staff person might be assigned to regularly remind reason writers (with copies to other interested persons such as other panel members and the chair of the tribunal itself) of the outstanding reasons and how much time has passed. Tribunal legal counsel may need special and urgent reminders for conducting their review of the reasons. Publishing statistics (at least internally) as to how long individual panel members have taken in their role can also provide motivation to write reasons rapidly.

Some tribunals establish written benchmarks as to when reasons are to be released. This is a “double-edged sword” in that a party can point to that document when challenging the reasons on an appeal. However, the benefit of clear and accepted expectations may outweigh this risk.

There may also be some benefit in tribunals not making early pronouncements of their decisions, before their reasons are ready. This strategy reduces the risk that someone will say that they constituted “result-driven reasoning” with the view of supporting the already pronounced decision. However, putting off the pronouncement of the decision itself creates other delay-related problems.

Professional tribunals need to find ways of getting their reasons out promptly.

A copy of Teskey can be found at:

www.canlii.org/en/ca/scc/doc/2007/2007scc25/2007scc25.html

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