Writing Reasons for Judgment simply is not easy

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Recent media and social media comments have called an Ontario judge's Reasons for Sentence in R. v. Armitage "a unique, inspiring and empathetic legal ruling". Others have lauded the judge for using plain language and writing his reasons to be understood by the offender. Although Justice Nakatsuru's judgment is unusual in the degree of simplicity of its words and sentences, other judges also work hard to make their decisions understood by the people affected.

Every day Provincial Court judges in British Columbia try to explain what they are doing and why to the people affected by their decisions, speaking as simply and clearly as they can. But this is harder to achieve than you might think. In a case called R. v. R.E.M. the Supreme Court of Canada set out the three main functions of a trial judge’s reasons:

  • they tell the people affected by the decision why the decision was made;
  • they provide public accountability for decision-making so that justice is not only done, but is seen to be done; and
  • they permit effective review for errors by an appeal court.

Judges' reasons should demonstrate that they have considered and properly assessed all the relevant evidence and applied legal principles properly. If a judge doesn’t mention a legal issue or analyse it correctly the decision can be overturned by an appeal court, and the parties may be subjected to a second trial.

Judges also try to accomplish other things with the way they word their reasons. They choose language and tones that show respect to the people involved. They phrase things sensitively to avoid further hurt to vulnerable people. They include encouragement to make positive changes. And particularly in family and civil court they may also try to express themselves in ways that help to repair relationships and inspire parents to co-operate for their children’s benefit. Explaining how legal concepts apply to particular facts in plain language and with sensitivity can be very challenging.

Judges also work under time pressures. They are conscious that the people affected want to learn the outcome of court proceedings as soon as possible. So most Provincial Court judgments aren't written down. In order to save people the cost and inconvenience of returning to court on another day to obtain a decision, judges will take some time at the end of a trial to organize their thoughts, and then give oral (spoken) reasons. For example, Okanagan Judge Vincent Hogan says that he tries to talk directly to the parties and the people affected by his decisions. He observes, “Most plain speaking and empathetic judgments occur in oral decisions, and they evaporate like the wind.”

Judge Hogan means that although spoken reasons are digitally recorded, those recordings are not usually put into written form. However, if a written record of spoken reasons is required, a transcript of what the judge said can be obtained. A few of the decisions in the online collection of B.C. Provincial Court judgments are spoken judgments saved from “evaporation” by being transcribed.

In cases where judges need longer to think about the right decision, to do legal research, or to prepare clear, complete and persuasive reasons, they will "reserve" judgment and draft written reasons to be provided at a later date. Most of the judgments published in law reports and online databases are written judgments.

Whether their reasons are spoken or written, judges work hard to make them understood by the people they affect. B.C. Provincial Court reasons for judgment can be found on the Court’s website at Judgments & Decisions or on CanLII, the Canadian Legal Information Institute database.

Tips on how to find Provincial Court reasons on CanLII are offered here. A more detailed guide to doing legal research on CanLII can be found at The CanLII Primer. If you want to be notified when Provincial Court decisions are posted online, you can subscribe to CanLII’s RSS feed.

This article provides general information only and should not be used authority in court proceedings or as a substitute for legal advice.