ARTICLE ● Quebec Appeal Court ruling shows danger of modifying oral decisions, law prof says ● THE LAWYER'S DAILY Sep 1, 2021
Quebec Appeal Court ruling shows danger of modifying oral decisions, law prof says
Wednesday, September 01, 2021 @ 12:57 PM | By Luis Millán
R. v. Teskey 2007 SCC 25
R. v. Wang 2010 ONCA 435
R. v. Thompson 2010 ONCA 463
Directeur des poursuites criminelles et pénales c. 3095-2899 Québec inc. 2021 QCCA 1222
The Quebec Court of Appeal overturned a lower court decision after it held that the judge went well beyond the limits of making minor modifications to a revised transcript of oral reasons by providing supplemental motives that gave the impression that they were crafted after the fact to substantially improve and bolster her reasons.
The ruling, besides issuing guidance over the scope of a provision in the Quebec Dam Safety Act (Act), underlines the tension faced by trial judges who are expected to render decisions in a timely fashion without sacrificing the need to provide sound and thoughtful reasons, remarked University of Ottawa law professor Emmanuelle Bernheim.
“Rendering timely decisions is important as we have seen judges take an incredible amount of time before issuing decisions,” explained Bernheim, co-author of the book Applied Judicial Ethics. “But there is pressure now exerted on the magistrature to decide quickly, and we see the consequences of this in this decision. That is, if judges do not have the time to take the time to develop their decisions, it is not in the interest of parties.”
The case involves a Quebec numbered company, Ski Bromont, that was found guilty by Court of Quebec justice of the peace Tanya Larocque of violating article 5 of the Act for failing to seek authorization from the Quebec Ministry of Environment to perform structural work on a dam on Lac Sheffington, an artificially created body of water the ski hill operator uses to make artificial snow. Ski Bromont was fined $2,000 in August 2020, a decision that was quashed three months later by Quebec Superior Court Justice Claude Dallaire in an oral ruling. A week later the Crown asked for a transcription of the oral ruling but Justice Dallaire informed the Director of Criminal and Penal Prosecutions (DCPP) that the transcription would not be ready by the holidays and to file an application for leave to appeal before the Quebec Court of Appeal if it intended to appeal her decision. The revised transcript was issued in February 2021, nearly three months after the oral decision was rendered, and the DCPP filed an amended leave to appeal.
The DCPP asserted that Justice Dallaire exceeded the limits of her right to revise her reasons in the revised transcript. It also maintained that the revised transcript was provided after the expiry of the time limit to appeal and that it was issued after the application for leave to appeal was filed.
The Quebec Court of Appeal pointed out that case law, notably the Supreme Court of Canada in R. v. Teskey 2007 SCC 25 as well as the Ontario Court of Appeal in R. v. Wang 2010 ONCA 435 and R. v. Thompson 2010 ONCA 463, held that it is inappropriate to change, modify or add to a transcript of oral reasons rendered in court unless it was editing the transcript for readability or to correct grammatical errors. Case law also holds that the integrity of the trial record and court proceedings is fundamental to the judicial system and to the transparency of those proceedings, pointed out the Appeal Court. Further, case law suggests that counsel who are present when oral reasons are delivered should have confidence that the reasons will not be changed to something substantially different. Moreover, jurisprudence intimates that reasons rendered quite sometime after a verdict and after a notice of appeal was filed may lead a reasonable person to “apprehend” that the trial judge may have, even subconsciously, reached a result-driven reasoning. In other words, judges have to be careful to avoid framing reasons to justify the verdict rather than articulating the reasons that led to the verdict, held the Quebec Court of Appeal.
There are some circumstances, pointed out the Appeal Court, when there may be good reason for announcing a decision prior to delivering the full reasons. But in those cases, judges should give a clear indication that the transcription of the decision will be supplemented by more comprehensive reasons.
“At the time when an oral decision is rendered, it is like a skeleton, a framework, that should not change,” said Bernheim. “The basis for the decision should be already present and already be clear. Judges cannot change reasons after they rendered the decision orally, particularly if it will be the basis of the appeal. Which leads to the question as to whether we are faced with situations where oral decisions are rendered because we want swift rulings or whether decisions are rendered orally and then comes the realization that the reasons are perhaps not very solid and therefore there is a temptation to modify it. Both situations pose problems for different reasons.”
When Justice Dallaire delivered her oral decision in November 2020, it amounted to a couple of paragraphs. But when she issued her revised transcript of her reasons in February 2021, it contained 177 paragraphs, 29 of which were dedicated to a new exposé of the evidence, another 29 over her re-evaluation of expert evidence and 19 more new reasons dealing with the scope of the Act. “These additions suggest that they were formulated to substantially improve and solidify her reasons,” held the panel of three Quebec Appeal Court justices in Directeur des poursuites criminelles et pénales c. 3095-2899 Québec 2021 QCCA 1222.
The Appeal Court added that the fact that there was a delay between the time Justice Dallaire rendered her oral ruling and the release of the transcription was not in and of itself grievous. Nor was the fact that the revised reasons were obtained after the DCPP manifested its intention to appeal or that she invited them to file a modified leave to appeal upon reception of the revised reasons. But Justice Dallaire should have mulled over, before rendering her oral judgment, whether she needed a few more days after hearing the case “to convey a complete and coherent message to the parties,” said Appeal Court Justices Jacques Chamberland, Geneviève Marcotte and Guy Cournoyer in the unsigned 37-page decision issued on Aug. 4.
Justice Dallaire should have also at the time she rendered her oral decision, if she intended to “refine” her reasons given the complexity of her analysis, be candid and transparent with the parties, particularly since she implied that there would be only a slight elaboration in the revised transcription, held the Appeal Court. “Insofar as she judged it necessary to improve her reasons, the question is whether this was or could reasonably be thought to be the result of a motion for leave to appeal or because she felt that the reasons given at the hearing were incomplete or inadequate,” added the Appeal Court.
“The decision sends a very clear message that judges must find the balance between rendering timely decisions and be ‘ready’ to issue decisions that have well established reasons, that are well-anchored, so that when the parties receive the reasons they are not new motives,” said Bernheim. “That is the challenge.”
The Quebec Court of Appeal also examined the meaning of article 5 of the Quebec Dam Safety Act which states that the construction, structural alteration or removal of any high-capacity dam requires the authorization of the minister of environment. Contrary to what Justice Dallaire held, the Appeal Court plainly stated that the DCPP does not have the burden of proving that the work represented a security risk to prove an offence. It also does not matter whether the work that is undertaken is relatively minimal or inexpensive, as Justice Dallaire held.
“While not all work requires authorization, only those that modify a structure, it would be prudent nevertheless to at least consult the Ministry to determine whether they consider the work as something that modifies the structure of the dam,” noted Marc Bishai, a lawyer with Centre québécois du droit de l’environnement, a charitable organization that offers independent environmental law expertise.
Justice Dallaire also erroneously adopted the technical meaning of the term structural and substituted her interpretation for that of the trial judge, without providing reasons for her decision, held the Appeal Court. She also ignored the presumption that legislation should be interpreted in favour of the ordinary meaning of words, something that Justice Dallaire failed to do when she interpreted the word structure.
“That is an interesting finding because dams are structures that requires technical knowledge,” said Bishai. “But the Quebec Court of Appeal insists that the word as defined by a dictionary should hold true and that the ordinary meaning of the word should be retained. So it’s interesting because the Appeal Court reminds us that laws are made for ordinary people, unless the contrary is proved.”