After a litigation loss, the usual client question that follows is “can we appeal?” No one involved in a court battle wants, or likes, to lose. When they do they have a natural need to know why. The "why" is supposed to come from the reasons provided for the decision. Beyond disagreeing with the judicial assessment generally, do the reasons supply the grounds for an appeal?
The Supreme Court of Canada (SCC) was called on to assess the adequacy of judicial reasons in the criminal case of R. v. R.E.M. (2008). There, the accused was charged with multiple counts of sexual assault. The evidence was largely a contest between the complainant and the accused. The complainant, years after the events, testified about the assaults which she asserted were not consensual and occurred both before and after she reached the age of consent which was at the time fourteen years of age. The accused maintained that the acts were both consensual and that they did not begin until the complainant was fifteen. The accused was convicted and appealed based on the insufficiency of the trial judge's reasons. The Ontario Court of Appeal (ONCA) agreed and allowed the appeal. The crown then appealed to the SCC which restored the conviction.
The SCC stated that a trial judge's reasons served three main functions:
With respect to an appeal, the SCC described the responsibility of the appellate court as follows:
Proceeding with deference, the appellate court is to ensure that, read in the context of the record as a whole, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issues before the court...
he question is whether the reasons, considered in the context of the record and the live issues at trial, failed to disclose a logical connection between the evidence and the verdict sufficient to permit meaningful appeal.
In the case at hand, the SCC found that the central issue for the trial judge to consider was the credibility of the parties. After considering the totality of the evidence, the trial judge was not left with any reasonable doubt as to the guilt of the accused. The ONCA then chose to approach the review of the trial decision from a skeptical standpoint. The ONCA focused on omitted details rather than the entirety of the judge's reasons.
The SCC further explained the fundamental basis of sound judicial reasons:
What is required is a logical connection between the “what” – the verdict – and the “why” – the basis for the verdict. The foundations of the judge’s decision must be discernible when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.
Appeals are expensive and extremely time-consuming. When considering an appeal, it's important to ensure that there is sufficient reason to believe that success is possible. A skilled lawyer will provide an opinion on whether the lower court reasoning provides a basis on which to form an appeal, such as a clear mistake of fact or mistake of law. Simple disagreement with the judge's findings will not be enough.
At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).