The Trial Judge Deserves Deference!

Oftentimes a Supreme Court of Canada decision can be, at first glance, unimportant, particularly when the decision is brief. This can happen when the Court readily agrees with the lower Court decision, either the majority or even the dissent, and does not feel the need to add to the already cogent written decision. Sometimes, these one-liners by the SCC, fly under the radar and are not recognized as impactful decisions.

Such was seemingly the case in a recent decision of the Supreme Court of Canada in R. v. T.L.M. released on February 14, 2012. The case, heard by a panel of seven justices as opposed to the full court complement of nine, was an appeal from the Supreme Court of Newfoundland and Labrador - Court of Appeal. In a pithy yet brief decision, Madame Justice Deschamps stated:

We agree with Hoegg J.A., dissenting at the Court of Appeal, that the trial judge committed no reviewable error. Therefore, the appeal is allowed.

This innocuous manner of overturning a lower Court decision belies the true nature of the case as revealed by a closer reading of the lower Court decision. Indeed, through the lower court decision, T.L.M. takes on a more complex meaning and sheds light on another decision of the SCC, the D.A.I. case, released only four days previously.

The D.A.I. case is of huge national importance pronouncing on the capacity of adults with mental disabilities to testify at trial under s.16 of the Canada Evidence Act. Section 16 outlines the procedure to be adopted when an adult witness’s mental capacity to testify is challenged at trial. If the witness does not understand the nature of an oath or a solemn affirmation and cannot communicate the evidence, the witness cannot then testify. If however, the challenged witness does not understand the nature of an oath but can communicate his evidence, he may testify upon promising to tell the truth in accordance with s. 16(3). In the D.A.I. case the trial judge upon entering into an inquiry as required by s.16 found the 23 year-old witness, who had a mental capacity of a three to six year old, could not testify as she did not understand the duty to speak the truth.

The majority of the SCC, speaking through Chief Justice McLachlin, found the trial judge erred in her application of s.16 by requiring the witness to understand the meaning of telling the truth before being permitted to testify. Section 16(3) merely required the witness to be able to communicate the evidence as a prerequisite to testifying. Once this was fulfilled, the witness could then testify upon promising to tell the truth. There was no need for the trial judge to determine whether or not the witness understood what such a promise entailed. Thus, Chief Justice McLachlin’s decision gave this second part of the s. 16(3) determination, the promise to tell the truth, a broad and generous interpretation consistent with the public policy of the “need to bring to justice those who sexually abuse people of limited mental capacity — a vulnerable group all too easily exploited.”

The connection between these two cases, T.L.M. and D.A.I., is found in the appellate principle of deference, referred to in both decisions, but more specifically, as referred to by Justice Binnie and Chief Justice McLachlin.

The main issue in the T.L.M. appeal, as discussed in the lower Court decision, related to the admission of similar fact evidence in a trial involving sexual offences against a child. The similar fact evidence was of another sexual offence against a child, which occurred at the time of the offences before the court. The main issue was credibility, with the accused, the child’s uncle, denying the offence. The similar fact evidence, which was admitted by the trial judge, was relied upon in disbelieving the accused and convicting him of all charges.

The majority of the Newfoundland appellate court found the trial judge erred in his application of the legal test for admissibility of similar fact evidence. To come to this decision, the majority relied upon the principles for admission as enunciated by Justice Binnie in the SCC decision of R. v. Handy. The dissent of Mr. Justice Hoegg disagreed with the majority and found the trial judge made no legal error in admitting the similar fact evidence. Justice Hoegg also relied on Binnie J.’s decision in Handy and made especial reference to Justice Binnie's comments on the “substantial deference” to be given to the trial judge’s decision on admission of similar fact evidence. It is Hoegg’s dissent, which the SCC accepts in allowing the appeal. neither Justice Binnie nor Chief Justice McLachlin sat on the appeal.

Chief Justice McLachlin, in D.I.A., also commented on the principle of deference: an appellate principle in which the court reviewing the trial judge’s reasons defers or accepts the trial judge’s decision based on the judge’s superior position having heard and observed the evidence as opposed to the appellate court, which only reads the evidence and arguments in written form. In Chief Justice McLachlin’s opinion, the trial judge’s error was fundamental and therefore no deference should be given to her decision.

Justice Binnie in dissent, and no stranger to the issue of deference as pointed out in the Handy case, disagreed and stated the following:

The majority judgment in the present case repudiates the earlier jurisprudence and the balanced approach it achieved.  It entirely eliminates any inquiry into whether the potential witness has any “conception of any moral obligation to say what is ‘right’”. 

In the result, despite all the talk in our cases of the need to “defer” to trial judges on their assessment of mental capacity, a deference which, in my opinion, is manifestly appropriate, the majority judgment shows no deference to the views of the trial judge whatsoever and orders a new trial.  I am unable to agree.  I therefore dissent.

Justice Binnie’s very strongly worded dissent takes issue with the lack of conviction the majority has with the principle of deference: in other words, the Chief Justice and the other Justices concurring in her decision, do not “walk the walk” when it comes to deference. These incongruous comments on deference by the majority become even more incomprehensible in light of the oft-quoted Marquard case, involving testimonial capacity, in which Chief Justice McLachlin stated:

It has repeatedly been held that a large measure of deference is to be accorded to the trial judge's assessment of a child's capacity to testify.  Meticulous second‑guessing on appeal is to be eschewed.  As Dickson J. (as he then was) put it (at p. 135) in the oft‑cited case of R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), aff'd [1966] S.C.R. v, a trial judge's discretion in determining that a child is competent to testify "unless manifestly abused, should not be interfered with."

Justice Binnie relied on McLachlin C.J.’s Marquard decision in his dissent in D.A.I.

In the end, the deference issue may come down to this: appellate courts will give deference more readily when the trial judge admits evidence than when the trial judge finds evidence inadmissible. It appears at least in matters of admissibility the SCC prefers to give deference to the principle of admissibility over exclusion. Although this approach may recognize more readily the public’s desire to have a matter tried, it may do so at the cost of a fair trial.