Trafficking convictions tossed after trial judge takes four years to release reasons for judgment

Court of Appeal found presumption of integrity and impartiality had been rebutted in the case

Trafficking convictions tossed after trial judge takes four years to release reasons for judgment
Michael Lacy, Brauti Thorning LLP

Ontario’s Court of Appeal has set aside a man’s heroin-trafficking convictions after the trial judge took over four years to release his reasons for judgment.

In a decision released Dec. 3, Justices Michal Fairburn, Kathryn Feldman and Alison Harvison Young found that the presumption of integrity and impartiality had been rebutted in the case against Shane Artis, who had been sentenced to ten years less the two he had spent in presentence custody.

Crown counsel, Lisa Mathews and Leanne Siu, agreed that Artis’ appeal must be allowed because, being delivered so late, the reasons were insufficient.

“It's really about the presumption of integrity of the reasons,” says Michael Lacy, who represented Artis and is a trial and appellate lawyer at Brauti Thorning LLP.

When a significant amount of time passes between judgment and the reasons, and the judge becomes aware that an appeal has been taken, it can give rise to an appearance that the judgement as been “reverse engineered,” as some courts have put it, says Lacy. The appearance may be that the reasons have been “written in response to the appeal, rather than reflecting the true reasoning process of the judge,” he says.

The Crown’s decision not to re-prosecute was rooted in the two questions which guide a decision to initiate or continue any prosecution, from the Public Prosecution Service of Canada Deskbook, says Lisa Mathews. The first is whether there is a reasonable prospect of conviction on the evidence based on the available evidence.” And the second, “whether a prosecution would serve the public interest.” The Crown determined this test was not met in the case against Artis, says Mathews.

“As the Court of Appeal noted in its decision, the timely release of written reasons fosters the principles of accountability and transparency in judicial decision making, so that the public can be assured that ‘justice is not only done, but seen to be done,’” she says. “Delays in the issuance of reasons for judgment mean that litigants and the public cannot know or see whether justice has been done.”

R. v. Artis, 2021 also dealt with significant issues that were not addressed in the reasons, says Lacy. One related to the co-conspirator’s exception to the hearsay rule, a “notoriously difficult area of law,” he says. One ground of appeal was that the trial judge had erroneously applied the exception in the circumstances. Another issue was the appropriate weight to attribute to text messages that were on a phone Artis shared with someone else.

The judge-alone trial was completed in three days in 2016 before Superior Court Justice Kofi Barnes.

Justice Barnes adjourned three times before rendering the verdict. Three months later, he released a handwritten endorsement, outlining three conclusions under the headings: Continuity, Hearsay and Burden of Proof. “No reasoning was provided to support any of the above conclusions,” said the Court of Appeal. At the end of the endorsement, Justice Barnes wrote that written reasons expanding on the three findings would come soon after and the sentencing date – three days later – would proceed as scheduled.

Artis asked for sentencing to be delayed and brought a s. 11(b) Charter application, which was dismissed. Again, Justice Barnes wrote that reasons for the dismissal would be “released in due course.”

Then, on March 22, 2018 – 19 months after the verdict was reached – Artis was sentenced to ten years, minus pre-sentence custody of nearly two years. But Justice Barnes still had not delivered the reasons for judgment or for the s. 11(b) application.

In October 2020, over four years after the verdict, the reasons finally came. By then, Artis had filed a notice of appeal, in which he raised Justice Barnes’ failure to deliver the reasons, “precluding all meaningful appellate review.” The day he was sentenced, Artis was released on bail and the matter was later converted to a solicitor appeal.

“The appellant did obtain bail, pending appeal,” says Lacy. “And, fortunately, was not sitting in custody waiting for the delivery of reasons. But the other problem that can arise with reasons for judgments that are substantially delayed is, of course, that in circumstances where they're substantially delayed and an accused is in custody serving their sentence, then they can't meaningfully assert their appellate rights.”

“It's a reminder to trial judges of the importance of delivering timely reasons whether they're convicting or acquitting.”

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