2008 BCCA 491 R. v. Sadler

Docket: CA035123

Between:

Regina

Respondent

And

Martin Sadler

Appellant

Before:	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Tysoe
	The Honourable Madam Justice D. Smith

M. Jetté	Counsel for the Appellant
D. Layton	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
September 25, 2008
Place and Date of Judgment:	Vancouver, British Columbia
November 28, 2008

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Tysoe

Reasons for Judgment of the Honourable Madam Justice D. Smith:

Overview

[1] Martin Sadler was charged with six offences arising out of a two-vehicle highway collision on August 24, 2003. The Information consisted of the following counts: (1) failing to remain at the scene of an accident, contrary to s. 252(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”); (2) refusing to provide a blood sample; (3) and (4) two counts of impaired driving causing bodily harm; and (5) and (6) two counts of dangerous driving causing bodily harm. He was convicted of failing to remain at the scene of the accident and two counts of dangerous driving causing bodily harm. He received concurrent jail sentences of 30 months for the two counts of dangerous driving causing bodily harm and a consecutive jail sentence of nine months for failing to remain at the scene of an accident.

[2] Mr. Sadler appeals his conviction in Provincial Court on count 1, for failing to remain at the scene of an accident. He contends that the verdict was unreasonable or cannot be supported by the evidence, and that the record discloses evidence which raises a reasonable doubt regarding the requisite mens rea for that offence. Pursuant to s. 686(1)(a)(i) of the Code he seeks an acquittal verdict on count 1.

[3] In the alternative, pursuant to s. 686(1)(a)(ii) of the Code Mr. Sadler seeks a new trial on count 1. He submits the trial judge erred in law by failing to provide any reasons with respect to the mens rea element of the offence. In particular, Mr. Sadler asserts that the trial judge’s reasons failed to specify whether he was satisfied the Crown had established beyond a reasonable doubt that the appellant intended to leave the scene of the accident in order to avoid criminal or civil liability and that determination on a key issue of the offence cannot be discerned from the record.

[4] For the reasons stated below, I would allow the appeal based on the second ground of appeal and order a new trial on count 1 of the Information.

Factual Background

[5] On August 24, 2003, at about 9:30 p.m., the appellant was driving his pickup with trailer in tow, eastbound on Highway 3, between Sparwood and Fernie. His trailer swerved sideways into the westbound lane and hit an oncoming vehicle. The two occupants of the vehicle were seriously injured.

[6] The collision occurred on a straight stretch of road. Road conditions at the time were good and a post-accident examination of the appellant’s truck and trailer revealed no mechanical problems.

[7] For some distance prior to the collision, a number of witnesses had noted the appellant’s erratic driving, which included weaving back and forth into the westbound lane. Immediately before the collision, his truck crossed the centre line and swerved back into its own lane, causing the trailer to fishtail into the westbound lane and collide with the oncoming vehicle. The force of the impact was “like an explosion” and sent clouds of dust and debris into the air.

[8] The badly damaged westbound vehicle came to a stop in the middle of the road. The appellant’s truck came to rest 25 metres away, with its front end in the eastbound lane and its rear tires on the shoulder. The remnants of the trailer were scattered all over the road.

[9] During the immediate aftermath of the collision, a number of witnesses observed a male in or around the appellant’s truck. They testified that they saw the male attempting to clear debris from the road and trying to start the truck two or three times, without success. They said he appeared unhappy about the circumstances. Some witnesses described him as generally unresponsive to their questions, appearing to be in a state of shock.

[10] Among the witnesses, Robert Thorn testified that he saw three empty beer cans, and three full beer cans, on the floor of the truck. He also smelled beer inside and outside the truck.

[11] Dawn Johansen, a licenced practical nurse, described her attempt to interact with the male at the scene. She asked him what he was doing as he was picking up the debris, but he did not respond to her questions. She asked him if he was the driver of the truck, to which he replied, “Yeah, yeah, yeah, yeah”. She asked him if he was injured and he responded “No”. She described the male as reluctant to come over to where she was standing. When they spoke, she was unsure whether he was talking to her, to himself, or to the road. She described the male as appearing unstable, although she did not observe any obvious injuries to his head.

[12] As a result of her medical training, Ms. Johansen assumed the male might have suffered a head injury in the accident as he appeared off balance, a little dizzy, and his speech was slurred and hard to understand. After checking on the occupants of the other vehicle, she returned her attention to the male and asked him if he needed any help. He answered her inquiry with verbal abuse. At trial, when asked her opinion about his sobriety, she said that she thought he was under the influence of alcohol.

[13] Another witness, Stephen Calderwood, said he was unable to obtain any coherent answers from the male. He said the male was frantically searching for something in the debris on the road, would not respond to his questions and spoke as if he was in a mantra. Mr. Calderwood described their “conversation” as illogical. He also smelled alcohol when standing beside the male.

[14] Each of the witnesses indicated the male at no time checked on the occupants of the other vehicle to see if they required help or provided his name and address. They said he eventually wandered off toward the railroad tracks, which run parallel to the highway. One of the witnesses described him as running from the scene; others said he walked away.

[15] After the male had left, Constable Dodds arrived at the scene. He examined the inside of the truck and found no blood. He observed three beer cans on the driver’s side floor, and one on the rear seat. He also noted beer cans on the passenger’s side floor and outside the vehicle. He discovered a crack near the top of the truck’s windshield in front of the steering wheel but found no visible blood or hair around the crack. He testified that, in his opinion, the crack was inconsistent with the head impression one would expect if an occupant in an accident was not wearing a seatbelt. A mechanic who examined the truck after the accident was unable to say whether the crack was created from the inside or outside of the truck.

[16] Two hours after the accident, Constable Dodds and Corporal Hammer, who joined him at the scene, located the appellant about 800–900 metres east of the accident site and about 100 metres from the highway, in a steep ditch near the railway tracks, curled up in a foetal position on the ground and moaning. Constable Dodds asked the appellant if his name was Martin but received no response. The appellant complained of pain but did not respond when Corporal Hammer asked him if his name was Martin or Martin Sadler.

[17] Together, the officers pulled the appellant to his feet. They described him as confused, in a fair amount of distress, complaining of chest pain and experiencing laboured breathing. They also noticed a significant gash on his shoulder as well as a faint smell of alcohol on his breath. They said that he spoke with a slurred speech and that he needed assistance in order to walk back to the highway. The appellant was taken by ambulance to a nearby hospital, where he was examined by medical staff.

[18] The appellant called a defence, but did not testify himself. His friend and co-worker, Wayne McQuarrie, testified on his behalf. Mr. McQuarrie said that he and the appellant had worked the graveyard shift at Elkview Coal, finishing at 8:00 a.m. on August 23. Thereafter, they drove the appellant’s truck and trailer to Mr. McQuarrie’s home in Cranbrook, arriving at about noon. While at Mr. McQuarrie’s home, they fabricated a bumper and attached it to the appellant’s trailer. At around “suppertime”, Mr. McQuarrie said that he was tired and went to bed. He said the appellant had been awake with him for almost 24 hours and had consumed a “couple” of beer with him. Some time after Mr. McQuarrie went to bed, the appellant left with his truck and trailer.

The trial judge’s reasons

[19] The trial judge provided no reasons for convicting the appellant of failing to remain at the scene. Instead, he focused on the issue of the truck driver’s identity and whether the Crown had established that element of each of the alleged offences beyond a reasonable doubt.

[20] This singular focus on the issue of identity was evident during closing submissions, when the trial judge stated to counsel: “[l]et’s talk about identity”. Appellant’s counsel confirmed that “identification is one burning issue”, confining his submissions to that issue only. Crown counsel also focused his submissions solely on the issue of identity. Neither counsel discussed the specific intent element of s. 252 of the Code.

[21] The trial judge began his reasons for judgment by dismissing the two counts of impaired driving causing bodily harm and the one count of refusing to provide a blood sample. The Crown invited the trial judge to acquit the appellant on the charge of failure to provide a blood sample.

[22] The trial judge then turned to the remaining charges. He noted the admissions by the defence that the accident had caused bodily harm, that the driver of the truck was driving dangerously, and that the driver of the truck had caused the accident. He then stated at para. 6:

The only issue, then, is, has the Crown proven beyond all reasonable doubt that Mr. Sadler was the driver of the truck and trailer that were registered to him at the time of the accident. If so, he must be convicted on counts 1, 5 and 6. If not, he must stand as acquitted on all charges.

[23] In this manner, the trial judge limited his consideration of the elements of the offence to that of identity only.

[24] Thereafter, the trial judge reviewed the evidence and counsel’s submissions, and concluded at paras. 23 and 24:

Mr. Sadler, I am satisfied on all of the evidence beyond any doubt at all, that you were the driver of that vehicle; that you caused that accident; that you left the scene. You must stand convicted of the offences alleged.

There is nothing before me but conjecture that would lead me to any other conclusion. You were there. The owner, you operated it in the morning. You were alone with the vehicle. The vehicle was on its route between Cranbrook and Sparwood. You were the person found in the area. You were the driver. You stand convicted.

[25] He made no reference to the mens rea element of the s. 252 offence.

The specific intent in s. 252

[26] Section 252(1)(a) provides:

252.(1) Every person commits an offence who has the care, charge or control of a vehicle … that is involved in an accident with

(a) another person, …

and with intent to escape civil or criminal liability fails to stop the vehicle, … give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle … offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

[27] It is common ground that the appellant committed the actus reus of the offence by leaving the scene of the accident without offering assistance to the injured parties and without giving them his name or address. The mens rea for s. 252 requires proof beyond a reasonable doubt of an accused’s specific intent to escape civil or criminal liability. This mens rea requirement is distinct from the modified objective test used to establish the mens rea for the offence of dangerous driving.

[28] Section 252(2) creates a rebuttable presumption that an accused intends to escape civil or criminal liability by leaving the scene of an accident. Evidence to the contrary that is not rejected by the trier of fact may rebut that presumption. Case law interpreting this section confirms that “evidence to the contrary” does not shift the burden of proof to an accused. Rather, it provides a basis whereby evidence which tends to show that an accused may not have possessed the specific intent required will support an acquittal verdict. See R. v. Proudlock, [1979] 1 S.C.R. 525; R. v. Baker (2006), 209 C.C.C. (3d) (Ont. C.A.), lv to appeal refused, [2006] S.C.C.A. No. 464; R. v. Nolet (1980), 4 M.V.R. 265 (Ont. C.A.); and R. v. Adler (1981), 59 C.C.C. (2d) 517 (Sask. C.A.). In contrast, evidence of impairment that does not amount to substantial or advanced intoxication will not be sufficient, on its own, to negate the presumption of specific intent for the purpose of rebutting the presumption in s. 252(2): R. v. Lemouel, [1989] N.W.T.R. 3 (S.C.); R. v. Ford, [1997] O.J. No. 220 (Ct. J. (Gen. Div.); and R. v. Daley, 2007 SCC 53, 3 S.C.R. 523.

The adequacy of reasons for judgment

[29] The appellant raises two grounds of appeal, both of which relate to the adequacy of the reasons for judgment provided by the trial judge.

[30] The adequacy or sufficiency of reasons for judgment, in a criminal case, must be examined in a functional and contextual manner. When read in their entirety and in the context of the evidence, the submissions of counsel and the history of the trial, reasons for judgment should fulfill the purposes for which they are intended. See: R. v. Sheppard, 2002 SCC 26, 1 S.C.R. 869, 2002 SCC 26 at paras. 24-33; and R. v. R.E.M., 2008 SCC 51 at para. 35.

[31] The three main purposes of reasons for judgment were summarized in R.E.M. at para. 11: (i) reasons tell the parties affected by the decision why the decision was made; (ii) reasons provide public accountability of the judicial decision; and (iii) reasons permit effective appellate review. These purposes are fulfilled when the reasons, read in their context and in conjunction with the record, reveal “why the judge decided as he or she did”. At para. 17 of R.E.M., McLachlin C.J.C., for the Court, described the purpose of reasons in this fashion:

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.

[32] The Court in R.E.M. expressly rejected the need for reasons to establish how the trial judge reached his or her conclusion. This concept was alternatively described as the “pathway to conviction” approach in R. v. Thomas, 2006 BCCA 411, 212 C.C.C. (3d) 460, or the “watch me think” approach to reasons as noted in para. 17 of R.E.M. Instead, the Court endorsed the approach taken by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 204 that “[i]n giving reasons for judgment, the trial judge is attempting to tell the parties what he or she had decided and why he or she made the decision”, and that the articulation of this process is “not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict”.

[33] The absence of reasons may not be fatal to a verdict where an appeal court is able to find a rational basis from the record to support the reasonableness of the trial judge’s conclusion: Macdonald v. The Queen, [1977] 2 S.C.R. 665; and Harper v. The Queen, [1982] 1 S.C.R. 2. Their omission becomes more problematic where the trial judge’s reasoning, in arriving at the verdict, remains unknown or unclear. Sheppard at para. 32.

[34] R. v. Burns, [1994] 1 S.C.R. 656 is often cited for the proposition that trial judges are under no duty to give reasons. This interpretation appears to have evolved from the following comments of McLachlin J. at para. 664:

Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points [citations omitted]. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused’s guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict.

This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out.

[35] Subsequently in Sheppard, Binnie J., speaking for the Court, clarified this view by adopting a contextual approach to assessing the adequacy of reasons for judgment. At para. 33, he stated that Burns should not be viewed as authority for the proposition that a trial judge has no obligation to give reasons, but as authority that the absence or inadequacy of reasons was not a freestanding ground of appeal.

[36] At para. 55, he summarized the following principles from earlier cases:

1. The delivery of reasoned decisions is inherent in the judge's role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.

2. An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.

3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.

4. The statutory right of appeal, being directed to a conviction (or, in the case of the Crown, to a judgment or verdict of acquittal) rather than to the reasons for that result, [means that] not every failure or deficiency in the reasons provides a ground of appeal.

5. Reasons perform an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of s. 686(1)(a) of the Criminal Code, depending on the circumstances of the case and the nature and importance of the trial decision being rendered.

6. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.

7. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge's reasons provide the equivalent of a jury instruction.

8. The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision.

9. While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.

10. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in that case for a new trial. Such an error of law at the trial level, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso.

[37] Thereafter, in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, Bastarache and Abella JJ., speaking for the majority of a five-judge panel, summarized the Sheppard test on assessing claims of inadequacy of reasons at para. 13:

Finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do they prevent appellate review? In other words, the Court concluded that even if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record. But if the reasons are both inadequate and inscrutable, a new trial is required.

[38] R.E.M. at para. 35 confirmed these key principles on assessing the adequacy of reasons as summarized in Sheppard at para. 55.

Grounds of Appeal

[39] If reasons for judgment do not meet the three main functions identified in R.E.M., a verdict may be overturned pursuant to s. 686(1)(a) of the Code, either by entering an acquittal or ordering a new trial.

[40] Section 686(1)(a) provides:

686.(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice; …

[41] The appellant relies on s. 686(1)(a)(i) and (ii) of the Code, in seeking to overturn his conviction under s. 252 of the Code based on what he submits was firstly, an unreasonable verdict, and secondly, an error of law arising from the lack of reasons on a key element of the offence.

(i) Unreasonable Verdict – s. 686(1)(a)(i)

[42] The appellant argues that the verdict was unreasonable, or cannot be supported by the evidence, pursuant to s. 686(1)(a)(i) of the Code. He points to evidence in the record that he submits should have raised a reasonable doubt that the appellant had the specific intent to commit the offence. He submits that where the evidence could support either a conviction or an acquittal, a reasonable doubt must exist and, therefore, the verdict is unreasonable.

[43] The Crown submits there was an overwhelming body of evidence to support a finding that the mens rea element of the offence had been established beyond a reasonable doubt. He contends that the body of evidence clearly supports the reasonableness of the guilty verdict.

[44] The standard of review pursuant to s. 686(1)(a) requires the court to conduct its own, albeit limited, review of the evidence adduced at trial: Burns at 662-63. That review involves a consideration of “… whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered”: R. v. Yebes, [1987] 2 S.C.R. 168; Corbett v. the Queen, [1975] 2 S.C.R. 275 at 282. This standard of review requires the appeal court to “review, analyse, and within the limits of appellate disadvantage, weigh the evidence”: R. v. Biniaris, 2000 SCC 15, 1 S.C.R. 381 at paras. 36-37. An appeal court may not impose its view of the evidence, in place of that of the trial judge, but may only interfere with the conclusion of a trial judge if there has been “… a clearly unreasonable assessment of the evidence”: R. v. E.R., 2002 BCCA 361, 171 B.C.A.C 223 at para. 3.

[45] In this case, while the trial judge provided no reasons from which his factual findings or analysis of the mens rea element of the offence could be reviewed, the reasonableness of his verdict could be assessed from the record. The focus of s. 686(1)(a)(i) of the Code is on the reasonableness of the verdict; it is not aimed at the reasonableness of the reasons for judgment. McLachlin J. in Burns noted this distinction at 664: “[i]f [trial judges] state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case”.

[46] This contextual approach to an assessment of the reasonableness of a verdict is comparable to appellate review of a verdict in a jury trial where, of course, no reasons are provided. The verdict of a jury cannot be found unreasonable if the record provides an evidentiary basis to support the verdict.

[47] Here, the record contains evidence that could support the trial judge’s verdict. The appellant’s specific intent to avoid civil or criminal liability by leaving the scene of the accident could be inferred from the testimony of some of the witnesses. However, there was also testimony from other witnesses that could give rise to a reasonable doubt as to the appellant’s specific intent. Depending on what evidence the trial judge accepted, difference inferences could be drawn to support either verdict.

[48] The appellant also argues that the evidence of his impairment, although not sufficient by itself to establish advanced intoxication, when viewed collectively with the other ”evidence to the contrary”, was sufficient to raise a reasonable doubt in regard to the mens rea of the offence. The Crown responds that the trial judge’s acquittal of the appellant on the impaired driving charges necessarily meant that he found the evidence of the appellant’s intoxication insufficient to provide an air of reality for the appellant’s assertion that his alcohol consumption, when considered with the other “evidence to the contrary”, required a finding that he did not have the specific intent for the offence.

[49] Both the appellant’s and the Crown’s submissions on the reasonableness of the trial judge’s verdict involve a significant weighing of the evidence, which they now ask this Court to undertake. Biniaris clearly states that such a task is not within the jurisdiction of an appeal court. While the trial judge’s lack of any reasoning for his conviction on count 1, apart from his finding that the appellant was the driver of the truck, makes it difficult for the Court to understand what evidence he relied upon and the inferences he drew from that evidence in order to reach his verdict, in my view the record as a whole provides a sufficient evidentiary basis for the Court to conclude that a properly instructed jury [i.e., trier of fact], acting judicially, could reasonably have rendered a verdict of guilty.

[50] I am not persuaded the verdict was unreasonable, or unsupported by the evidence, and would not accede to this ground of appeal.

(ii) Inadequacy of Reasons – s. 686(1)(a)(ii)

[51] In the alternative, the appellant submits that the trial judge’s failure in this case to provide reasons in regard to the mens rea of the offence under s. 252 of the Code constitutes an error in law for which a new trial must be granted pursuant to s. 686(1)(a)(ii) of the Code.

[52] Binnie J. in Sheppard described this ground of appeal at para. 28:

The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.

[53] He went on to state at para. 46:

… even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function.

[54] Meaningful appellate review requires the Court to be able to discern the foundation for the conviction. In R.E.M., the Court described this function at para. 57:

Appellate courts must ask themselves the critical question set out in Sheppard: do the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review? To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved. If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law. [Emphasis added]

[55] In order to convict, trial judges must be satisfied that the actus reus and mens rea of an offence are established beyond a reasonable doubt. Their reasons for judgment need not review all of the evidence, arguments of counsel, or uncontroversial legal principles in order to disclose their determination that these essential elements of an offence have been established. Trial judges are presumed to know the law and are not required to provide detailed, “watch me think” accounts of their decision-making process. Perfection is not the standard. However, where the record raises an issue regarding an essential element of an offence, their reasons must be sufficient to permit meaningful appellate review on the correctness of their verdict.

[56] In this case, the trial judge actively considered the issue of identity. However, his reasons were silent on the issue of the mens rea of the offence. This was a critical issue because the requisite specific intent for count one differed from the general intent requirement for the other counts in the information. It was also critical because of the broad spectrum of evidence concerning Mr. Sadler’s conduct after the collision, which evidence could give rise to different inferences regarding his state of mind. Depending on what inferences the trial judge drew from that evidence, in my view he could have concluded that the mens rea for this offence had or had not been established by the Crown.

[57] The record does not show that he addressed this issue. The reasons for judgment indicate the trial judge limited the issue for his consideration to that of identity. His silence on the issue of the mens rea of the offence precludes this Court from discerning whether he directed his mind to whether the Crown had established the specific intent required for this offence or simply overlooked it in reaching his verdict. In the language of R.E.M., the trial judge’s reasons for judgment provided no discernible connection between his verdict (the “what”) and the basis for his conviction (the “why”).

[58] In Macdonald, Laskin C.J.C., for the majority, explained at 673 that the remedy in such circumstances is to order a new trial:

Where some reasons are given and there is an omission to deal with a relevant issue or to indicate an awareness of evidence that could affect the verdict, it may be easier for an appellate Court or for this Court to conclude that reversible error was committed: [citations omitted.]

[59] This is not a case where the record can fill the “gap” in the trial judge’s reasoning. Nor is it a case where the Court can explain the trial judge’s verdict in its own reasons, or where it can find that the result would necessarily have been the same had the error not occurred. For these reasons, I would not apply the curative provision of s. 686(1)(b)(iii) of the Code in this case; in my view, this omission can only be addressed by ordering a new trial.

[60] In the result, I would allow the appeal and order a new trial on count 1 of the Information.

“The Honourable Madam Justice D. Smith”

I AGREE:

“The Honourable Madam Justice Prowse”

I AGREE:

“The Honourable Mr. Justice Tysoe”

Citation:	*R. v. Sadler,*
	2008 BCCA 491