



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Artis, 2021 ONCA 862

DATE: 20211203

DOCKET: C65066

Fairburn A.C.J.O., Feldman and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shane Artis

Appellant

Michael Lacy and Bryan Badali, for the
    appellant

Lisa Mathews and Leanne Siu, for the
    respondent

Heard: in writing

On appeal from the conviction entered by
    Justice Kofi N. Barnes of the Superior Court of Justice on November 21, 2016,
    and from the sentence imposed on March 22, 2018.

REASONS FOR DECISION

[1]

On August 10, 2016, the appellant was found
    guilty of possession of heroin for the purpose of trafficking and conspiracy to
    possess heroin for the purpose of trafficking. He was told that written reasons
    for judgment would follow. He was later sentenced to ten years incarceration,
    less about two years of presentence custody. It took over four years for the
    written reasons for judgment to be delivered.

[2]

This is an appeal from conviction and sentence.
    The respondent concedes that the conviction appeal must be allowed on the basis
    that the reasons were insufficient because they were delivered so long after
    the verdicts were rendered. We agree.

[3]

This was a short, judge-alone trial that took
    place in April 2016. The evidence was complete within three days. After closing
    submissions were made, the matter was put over for judgment. Despite the
    brevity of the case, it involved some complex issues. By way of example, the
    trial judge was called upon to apply the notoriously difficult co-conspirators
    exception to the hearsay rule; to decide upon continuity issues; and to consider
    expert evidence in determining what inferences, if any, could be drawn from
    coded language used in seized electronic communications.

[4]

The scheduled day for judgment was adjourned three
    times because the trial judge was not ready to proceed. On August 10, 2016, when
    the trial judge finally rendered the verdict, he announced the following:

Mr. Artis, please stand. After trial in this
    particular matter and after considering all of the evidence, the court has
    reached the following verdict in this matter. With respect to count 1,
    importation, not guilty. Count 2, possession for the purpose, guilty. Count 3,
    conspiracy to import, not guilty. Count 4, conspiracy to, possession for the
    purpose of trafficking, guilty.
So that is the verdict of
    the court. Written reasons will be released prior to sentencing date  for
    counsel to consider. So having reached those verdicts, we are to pick a date
    for sentencing
. [Emphasis added.]

[5]

On November 21, 2016, over three months after
    announcing the verdicts, and having promised to release written reasons prior
    to the sentencing date, the trial judge released a handwritten endorsement setting
    out three conclusions that he had reached:

(1)

Continuity:
The defence objection about continuity of evidence was speculative
    and without evidentiary foundation. The trial judge was satisfied that the
    evidence as a whole indicates beyond a reasonable doubt no tampering or
    contamination of the package and its contents occurred, such as to compromise
    the integrity of the package and its contents.

(2)

Hearsay:
The trial judge appears to have decided that the co-conspirators
    exception to the hearsay rule applied. As he put it, Defence objections to the
    application of the co-conspirators exception to the hearsay rule, on the basis
    of a failure by the Crown to satisfy the necessity criteria, is dismissed. I am
    bound by the S.C.C. decision in
Mapara
[
R. v. Mapara
, 2005
    SCC 23, [2005] 1 S.C.R. 358]
, at para. 31.

(3)

Burden of
    Proof:
The trial judge expressed satisfaction
    beyond a reasonable doubt that the appellant had conspired with another named
    person and an unidentified person to possess heroin for the purpose of
    trafficking. He also expressed his conclusion that the unidentified person was
    higher up in the drug trade hierarchy and that the appellant was situated in
    the low end of the drug trade hierarchy.

[6]

No reasoning was provided to support any of the
    above conclusions. The handwritten endorsement ended by reinforcing that
    written reasons expanding on the above findings would be forthcoming and that
    the sentencing date of November 24, 2016, three days later, would proceed as
    scheduled.

[7]

At the appellants request, the sentencing did
    not go ahead as planned. Ultimately, the appellant brought a s. 11(b)
Charter
application, which was heard on October 13, 2017. On November 8, 2017, the s.
    11(b) application was dismissed, again with written reasons to follow: Mr.
    Artis s. 11(b) motion/application is dismissed. Reasons shall be released in
    due course. Sentencing was to proceed on November 14, 2017.

[8]

On March 22, 2018, now over 19 months after the verdicts
    had been announced, and with the reasons for judgment and the reasons on the s.
    11(b)
Charter
application still outstanding, the appellant was
    sentenced to ten years in custody. With presentence custody accounted for, he
    had over eight years left to serve.

[9]

The appellant filed a Notice of Appeal prior to
    the date of sentencing. At that point he was self-represented. In his Notice of
    Appeal, the appellant raised the failure of the trial judge to provide reasons
    for conviction and for dismissing the s. 11(b) application, as he put it, precluding
    all meaningful appellate review. On the same day that he was sentenced, the
    Crown consented to the appellants release on bail. Eventually the matter was
    converted to a solicitor appeal.

[10]

The reasons for judgment and reasons for
    dismissing the s. 11(b) application were not released until October 14, 2020.
    This was over 50 months after the verdicts had been announced and over 35
    months after the s. 11(b) application had been dismissed.

[11]

Reasons for judgment constitute the very means
    by which judges remain accountable for the verdicts they reach. Transparency in
    how verdicts are arrived upon is critical to ensuring that justice is not only
    done, but seen to be done. Remaining accountable to the parties and the public
    by explaining how verdicts have been arrived upon is fundamental to nurturing
    respect for the rule of law.

[12]

Where judges simply announce verdicts and fail
    to provide reasons for the conclusions reached, it is impossible to know
    whether justice has been done and, without a doubt, it cannot be seen to have
    been done:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para.
    15.

[13]

As a practical matter, written reasons for
    judgment will sometimes follow the announcement of the verdict. While it is
    always preferable to explain the reasons underpinning a verdict as it is
    delivered, other overarching considerations may, on occasion, justify the need
    for a period of time to produce those reasons. Some examples of these overarching
    considerations in the criminal context were addressed in
R. v. Teskey
,
    2007 SCC 25, [2007] 2 S.C.R. 267, at para. 17, including delivering immediate verdicts
    of acquittal to ensure an accused is not held in custody longer than necessary
    or delivering verdicts of guilt at the conclusion of a hearing to secure an
    earlier date for sentencing.

[14]

Whatever the circumstances, when verdicts are
    announced with reasons to follow, those reasons should follow as quickly as
    possible. Where the reasons underlying a conviction or acquittal remain outstanding
    for a long time, everyone  accused, victims, other justice system participants,
    and the public  are left without any explanation or justification for the
    result reached, often leaving them without any means by which to assess whether
    justice has been achieved. It also deprives the losing party of a meaningful
    basis upon which to give consideration to grounds of appeal.

[15]

Reasons are not meant to be after-the-fact
    justifications for verdicts reached, but explanations for how those verdicts
    were actually arrived upon. When reasons are delivered long after verdicts are
    announced, it can cause reasonable people to question whether the judge has
    engaged in result-driven reasoning, the very antithesis of the trial judges
    duty to consider the matter with an open mind and an indifference to the
    result:
Teskey
, at para. 18.

[16]

While a decision is presumed to reflect the
    reasoning that led [the trial judge] to [their] decision, it is a rebuttable
    presumption:
Teskey
, at paras. 19, 21. Where a reasonable person would
    find that the written reasons for verdict reflect an after-the-fact
    justification for the verdicts rather than an articulation of the reasoning
    that led to the decision, the reasons must be disregarded on appeal because
    the presumption of integrity and impartiality will have been rebutted:
R. v.
Cunningham
, 2011 ONCA 543, 106 O.R. (3d) 641, at para. 14, citing
Teskey
,
    at para. 23.

[17]

We agree with the parties that the presumption
    of integrity and impartiality has been rebutted in this case.

[18]

Standing on its own, delay in the delivery of
    reasons will not give rise to the rebuttable presumption:
Teskey
, at
    para. 23. Even so, the longer the reasons take from the time of verdict, the
    heavier that delay will factor into the reasonable person test. In other words,
    the longer the delay, the more likely it is that a reasonable person would find
    that the written reasons for judgment reflect an after-the-fact justification
    for the verdicts reached. The delay of 11 months between verdict and reasons in
Teskey
combined with other factors to rebut the presumption of
    integrity and impartiality such that the appeal was allowed, the convictions were
    set aside, and a new trial was ordered.

[19]

This case involves a delay that is almost five
    times as long as the delay in
Teskey
. Notably, the reasons were
    delivered about 31 months after the Notice of Appeal had been filed. In our
    view, this factors very heavily into the assessment of what a reasonable person
    would think about the integrity of the reasons and whether they could possibly
    represent anything other than an after-the-fact justification for the verdicts
    reached.

[20]

The extraordinary length of time to produce the
    reasons combines with the fact that there were complex, triable issues in this
    strictly circumstantial case. The trial judge did engage with those issues in
    his 27 pages of written reasons. However, like the respondent who concedes this
    appeal, we have no confidence that the reasoning on those issues and the
    inferences drawn reflect the actual path to the verdicts, rather than justification
    of the verdicts in the face of an appeal.

[21]

In these circumstances, we cannot consider the
    written reasons for purposes of upholding the verdicts.

[22]

The respondent has taken the very clear and
    responsible position that it will not re-prosecute the appellant. Therefore, we
    are asked by the respondent to acquit the appellant. In light of the
    evidentiary backdrop involved in this case, though, we decline to enter
    acquittals. Rather, the proper course is for the matter to return to the trial
    court and for the Crown to exercise its discretion accordingly.

[23]

Therefore, the appeal is allowed, the
    convictions are set aside, and a new trial is ordered.

[24]

The court expresses its thanks to counsel for
    their cooperation in this matter.

Fairburn A.C.J.O.

K. Feldman J.A.

A. Harvison Young J.A.


