If there has been one dominant trend in the judicial review of tribunal decisions over the past five years, it has been about the need for tribunals to give adequate reasons. This trend has been obvious to even casual readers of this newsletter. 

Intelligible reasons are not only a legal requirement, they also:

• are fair to the parties who are entitled to know why the tribunal decided as it did;
• foster just decisions (as decisions can only be made if the tribunal can articulate a rationale for it); and
• enable a meaningful right of appeal.

This renewed emphasis on appropriate reasons for decisions is often said to have begun with the Supreme Court of Canada decision in R. v. Sheppard, [2002] 1 S.C.R. 869. However, even in that case the Court stressed that perfection was not required. It made the following points:

The reality of pressing schedules and the need to provide justice in the next case has to be considered. There is a limit to the time that tribunals can devote to writing reasons.

• Reasons acquire particular significance when a tribunal is called upon to address a contentious point (e.g., as to the limits of professional misconduct), or to resolve confused and contradictory evidence on a key issue.
• Reasons only have to be sufficient to meet their purpose. In particular, they simply need to explain to the parties and the appellate court why the decision was made. They do not have to provide a detailed description of the entire hearing; just those aspects relevant to the issues in dispute.
• Even where reasons are deficient, if the parties and the appellate court can determine the basis of the decision, it is not necessary to quash the decision just because the reasons were inadequate.

Earlier this month, the Supreme Court of Canada returned to this theme in R. v. Walker, 2008 SCC 34. Perhaps in an attempt to signal to lower courts that over-zealous scrutiny of the adequacy of reasons is not required, the Court upheld a decision with reasons that were “far from ideal”.

After a night of heavy drinking, Walker shot and killed his common law spouse. Walker said it was an accident. The Crown charged him with murder. The trial Judge acquitted him of that charge and only convicted him of manslaughter.

The Crown appealed, arguing that the brief oral reasons of the trial Judge were inadequate. The Crown argued that:

the trial judge’s reasons are deficient because one cannot tell if the trial judge decided the murder was unproven because he had at least a reasonable doubt that the pulling of the trigger was an accident; or if the appellant did pull the trigger deliberately, he did so without knowing where the gun was aimed; or if he deliberately pointed the gun at his spouse, it went off accidentally; or if he shot deliberately, but with a drunken failure to form the specific intent to kill or cause bodily harm foreseen as likely to cause death, and reckless whether or not death ensues….

The Supreme Court of Canada began by agreeing that the prosecutor was entitled to adequate reasons for an acquittal just as much as a defendant was entitled to reasons for a conviction.

However, in determining the adequacy of the reasons, the Court said:

Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments.  Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.

Here the issue was whether the Crown had proved that Mr. Walker had the requisite intent to cause death. The Court concluded:

In my view, on a fair reading of the trial judge’s reasons as a whole, his reasonable doubt as to intent was raised by what he considered to be the real possibility that the shooting was the result of an accident in which the appellant’s alcohol consumption played a significant role.

It was unnecessary for the trial Judge to specify precisely how the death occurred.

While regulators should never aim for mediocrity, this judgment highlights that the heart of reasons is to address the issues in dispute in the case. Even after lengthy hearings, the parties usually identify a small number of issues that are “live”. Rather than spending hours describing the entire case and summarizing the evidence of every witness, tribunals would be wise to devote their efforts to addressing the identified concerns.

If at the end of the process a regulator is unclear as to what the issues are, it should insist that both parties identify them clearly and logically.

The Walker case can be found at: www.canlii.org/en/ca/scc/doc/2008/2008scc34/2008scc34.html.

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