Regular enough readers of this blog know that I tend to harp on the judicial obligation to set out the applicable law correctly.
Some readers of this blog who still remember their university days may remember finding out that it wasn’t enough to get to the seemingly correct answer. You had to explain, correctly, how you got that answer. You might, depending on what the mistake was, still get a passing grade on the question; however, you might not.
However, lawyers who are in practice soon learn, if they didn’t at law school, the ultimate rule: appeals are from the result – the judgment – not the reasons for judgment. There is no miscarriage of justice if it is sufficiently clear (whatever sufficiently means in the particular case) that the error in issue did not make a difference; that the result is the result required on the facts. The Supreme Court of Canada wrote in R. v. Sheppard,  1 SCR 869, 2002 SCC 26:
 The appellant Crown contends that “[i]t has been a settled principle of Canadian law that a trial judge does not have to give reasons” (factum, at para. 13 (emphasis in original)). This proposition is so excessively broad as to be erroneous. It is true that there is no general duty, viewed in the abstract and divorced from the circumstances of the particular case, to provide reasons “when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances” (R. v. Barrett,  1 S.C.R. 752, at p. 753). An appeal lies from the judgment, not the reasons for judgment. Nevertheless, reasons fulfill an important function in the trial process and, as will be seen, where that function goes unperformed, the judgment itself may be vulnerable to be reversed on appeal.
 At the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public. Decisions on individual cases are neither submitted to nor blessed at the ballot box. The courts attract public support or criticism at least in part by the quality of their reasons. If unexpressed, the judged are prevented from judging the judges. The question before us is how this broad principle of governance translates into specific rules of appellate review.
 The appellant relies on this statement as establishing a simple rule that trial judges are under no duty to give reasons, but it seems to me, on the contrary, that this Court did expect trial judges to state more than the result. McLachlin J. anticipated at least “their conclusions” on the main issues (though perhaps not “collateral” issues) at least “in brief compass”. Further, as pointed out by O’Neill J.A. in the court below, the observations in Burnswere substantially qualified by the use of the words “all”, “general”, “merely”, “all aspects”, “in itself”, “every aspect”, “in brief compass”, and “collateral aspects”. What was said in Burns, it seems to me, was that the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required. The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.
[Emphasis added in para 4; underlining emphasis added in para. 33; other emphasis in original in para. 33.]
R. v. Sheppard applies in at least some areas of private law, includes claims for damages in tort and contract: see Cojocaru v. British Columbia Women’s Hospital and Health Centre,  2 SCR 357, 2013 SCC 30; Hill v. Hamilton-Wentworth Regional Police Services Board,  3 SCR 129, 2007 SCC 41 at paras. 100-101; and, at the provincial appellate level, including: Bunan v. Toronto-Dominion Bank, 2015 ONCA 226 at para. 20 (” … the test on appeal is whether any deficiency in the reasons has occasioned prejudice to the exercise of [the appellant’s] legal right to an appeal” [internal quotations marks omitted]); Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520
 Having concluded that the reasons of the Small Claims Court were facially incapable of appellate review, the Divisional Court was obliged to consider the record before the trial judge to determine if the reasons were more comprehensible when read in the context of this record.
 The level of requisite detail in reasons will be lessened “[w]here the record discloses all that is required to be known to permit appellate review”: Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41 (CanLII),  3 S.C.R. 129, at para. 101. If a detailed record is available, the appellate court should not intervene “simply because it thinks the trial court did a poor job expressing itself”: R. v. Sheppard, 2002 SCC 26 (CanLII),  1 S.C.R. 869, at para. 26.
See also Paragon Capital Corporation Ltd. v Morgan, 2014 ABCA 363 at paras. 47-49; Wadden v. BMO Nesbitt Burns, 2015 NSCA 48 at para. 63. This link will take you to a CanLII search result for appellate decisions across Canada over the past year (Sept. 2014 – Sept. 2015). Change the date filter to increase the range.)
Is there at least some inconsistency between the statements in the second and third paragraphs I wrote above? Yes. Welcome to the legal system. It’s called circular breathing: the ability to suck and blow at the same time.
More after the break.