Thank you very much. It's an honour to be here.
As a professor, I teach both constitutional and criminal law. Before joining the academy I worked for the Women's Legal Education and Action Fund, litigating cases affecting women's equality. I was privileged to have participated in decisions that shaped our current framework for sexual assault, which I regard as one of the most progressive in the world.
I support the spirit animating this bill. There is a clear need for the criminal justice system to provide greater assurance to women that judges and lawyers are sensitive to issues of gender-based violence and have the requisite expertise to adjudicate such cases fairly.
I'm going to focus my introductory remarks on the written reasons provision. I have only five minutes and several points, so I'll be brief on each of them. I'd just like to acknowledge from the outset that in thinking through these issues I benefited from discussion with Professor Michael Plaxtonof the University of Saskatchewan.
My first point is that judges should provide reasons for their decisions, and indeed in 2002, in a case called Sheppard, the Supreme Court of Canada recognized a duty of trial judges to provide reasons in all criminal cases, albeit not solely in written form. This duty is owed principally but not exclusively to the parties—the crown and the defendant—by virtue of the fact that each has rights of appeal that might be undermined if they cannot make sense of the verdict.
My second point is that some people have argued that written reasons are superior to oral ones, but it's important to note that both written and oral reasons are judged according to the same legal standard. What, then, is the written reasons provision intended to achieve?
Another way to think about it is, who is the duty of written reasons owed to? Is it the parties, the complainant, the public at large, parliamentarians, researchers, advocates? This question is important because different constituencies will want and need different things from reasons. Whatever interest is emphasized, that emphasis will have an impact on how this provision is interpreted.
My third point is that it is a frustrating element of criminal law that even in written reasons there may be limits to what one can reasonably expect trial judges to explain. In sexual assault cases this is most obvious in terms of how judges explain their assessments of credibility.
Obviously, judges must never resort to sexist myths and stereotypes; doing so is a legal error. Supplying written reasons may make it easier for the public to know when this has occurred. Even if a decision does not stray into that danger zone, however, reading a credibility assessment can be very unsatisfying. Such decisions often are based at least in part on demeanour.
The House of Lords put it this way, “Evidence may read well in print but be rightly discounted by the trial judge; or, on the other hand, he may rightly attach importance to evidence that reads badly in print.”
It can be very challenging to articulate why one witness is credible and another is not. As a result, appellate courts treat credibility findings with great deference. Simply requiring all reasons to be written out, then, without more, is unlikely to change the test that higher courts use to evaluate them and consequently may have little effect on what they actually say.
My fourth point is that the provision doesn't specify what happens if written reasons are not forthcoming or are not produced in a satisfactory way. Is it intended that a failure to provide adequate written reasons creates an additional ground of appeal? Could a defendant appeal against a conviction even if the judge has formulated reasons that are otherwise legally sound? What about the crown?
My fifth point is that I want to reiterate what Justice Kent said in the previous panel, that delays in criminal justice have become a matter of acute concern, so it's important to evaluate the benefit of this measure against the possible cost in delay, especially in provincial courts, which hear the majority of criminal cases.
Finally, if the aim is to improve public accessibility, it's not enough that reasons be written. They must also be published on accessible platforms. Currently there is no guarantee that written reasons will be published, and many are not. Courts and public databases may require additional resources in order to ensure this necessary step for true accessibility.
Thank you again for the opportunity to appear. I look forward to your questions on this or other aspects of the bill.