R. v. Kitch, 2023 NSCA 33

Nova Scotia Court of Appeal Citation: R. v. Kitch, 2023 NSCA 33 Date: 20230505 Docket: CAC 516448 Registry: Halifax Between: Tracy Kitch Appellant v. His Majesty the King Respondent Judge: The Honourable Justice Carole A. Beaton Appeal Heard: March 7, 2023, in Halifax, Nova Scotia Subject: Criminal; Criminal Code; Criminal Code - s.380(1); Criminal Code - s.122; Criminal - fraud; Criminal- fraud by a public officer; Criminal - factual findings; Criminal - sufficiency of reasons; Reasons -sufficiency Cases Considered: R. v. Kitch, 2022 NSPC 4; High Performance Energy Systems v.

Halifax (Regional Municipality),2023 NSCA 16; R. v. Brake, 2019 NLCA 20; R. v. Preston, 2022 NSCA 66; R. v. J.M.S., 2020 NSCA71; Canada (Transportation Safety Board) v. Carroll-Byrne, 2021 NSCA 34; R. v. G.F., 2021 SCC 20;McPhee v. Canadian Union of Public Employees, 2008 NSCA 104; R. v. Théroux, (SCC), [1993] 2 SCR 5; R. v. Boulanger, 2006 SCC 32; Landry c. R., 2022 QCCA 1186; R. v. Zlatic, 2SCR 29; R. v. Riesberry, 2015 SCC 65; R. v. R.E.M., 2009 SCC 51; R v. Sheppard, 2002 SCC 26; R. v.Braich, 2002 SCC 27; R v. Ramos, 2020 MBCA 111; S.R. v. Nova Scotia (Minister of CommunityServices), 2012 NSCA 46; R. v.

Lagace, (ON CA), [2003] OJ No. 4328; R. v.Dinardo, 2008 SCC 24; R. v. D.B., 2022 SKCA 76; R. v. Gerrard, 2021 NSCA 59; R. v. Stanton, 2021NSCA 57; R. v. Fleming, 2023 NSCA 28; Bruno v. Dacosta, 2020 ONCA 602; R. v. Assi, 2023 MBCA2.

Summary: The appellant, the CEO of a hospital, was convicted of fraud and fraud by a public officer in relationto her employment. The offences involved personal expenses incurred on her corporate credit card, herpersonal use of corporate flight passes, and personal expenses invoiced directly to her employer. On appeal from conviction, she sought to have the Court quash her convictions and order a new trialon the basis of errors by the trial judge.

Issues: 1. Did the trial judge err in not linking his factual findings to the evidence? 2. Did the trial judge err in not reconciling conflicting evidence? 3. Did the trial judge err regarding sufficiency of reasons? Result: The judge erred in not providing an analysis of his application of the law to the evidence before him. It was not possible to discern how the judge concluded the actus reus and mens rea of the offences on the facts he found. The judge did not reconcile conflicting evidence, or if he did, he did not explain how he had done so.

The judge’s reasons were not sufficient to permit meaningful appellate review. The appeal was allowed, the convictions quashed and a new trial ordered. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: R. v. Kitch , 2023 NSCA 33 Date: 20230505 Docket: CA 516448 Registry: Halifax Between: Tracy Kitch Appellant v. His Majesty the King Respondent Judges: Farrar, Derrick and Beaton, JJ.A.

Appeal Heard: March 7, 2023, in Halifax, Nova Scotia Decision Released: March 7, 2023 Held: Appeal allowed, per reasons for judgment of Beaton J.A.; Farrar and Derrick JJ.A. concurring Counsel: Brian H. Greenspan, Michelle M. Biddulph and Jacqueline L. King, counsel for the appellant Erica Koresawa, counsel for the respondent

Introduction [ 1 ] By all accounts, the appellant Tracy Kitch’s three-year tenure as Chief Executive Officer (“CEO”) of the Halifax IWK Children’s Hospital (“IWK”) was satisfactory, save one noteworthy exception. Over time, Ms. Kitch’s use of her corporate credit card, and her claiming and reporting of expenses, came under a degree of scrutiny that ultimately led to her resignation. The following year she was charged with fraud contrary to Section 380(1) of the Criminal Code and fraud by a public officer contrary to

Section 122 of the Code . Convicted on both counts, Ms. Kitch filed an appeal to this Court. The appeal was granted with reasons to follow. These are those reasons. [ 2 ] The appellant began her tenure as CEO in September 2014. She signed a five-year employment contract which, among other matters, required her to abide by all policies and procedures in effect at the IWK. The contract contemplated reimbursement for her documented business-related expenses and travel, and a relocation allowance to assist in her move to Halifax.

The appellant was provided a corporate credit card, and acknowledged in writing that it was not for personal use. [ 3 ] Soon into her term, IWK staff began to experience difficulties in tracking and documenting the appellant’s business versus personal expenses. The problem continued over time, involving various IWK personnel attempting to identify personal expenses of the appellant charged on her corporate credit card, personal travel by the appellant using IWK-purchased flight passes, and personal expenses invoiced directly to the IWK.

Different staff employed various methods over time in an effort to create a sufficient paper trail that would permit both reimbursement by the IWK to the appellant for business expenses, and reimbursement by her to the IWK for personal expenses. [ 4 ] In October 2016 the provincial government issued a requirement that executives’ expenses be posted online. This obligation captured the appellant in her role.

Eventually, media attention came to bear on the appellant’s expense history, which led to discussions between her and two successive IWK Board of Directors chairs regarding the accuracy and veracity of her expense claims. By September 2017 the scrutiny was so intense that the appellant, having by then reimbursed the IWK thousands of dollars for personal expenses, resigned. In October 2018 she was charged with the fraud offences. [ 5 ] A 12-day trial was held before Judge Paul Scovil of the Provincial Court (“the judge”) in November 2021.

The judge heard from 19 witnesses and received dozens of documentary exhibits, some numbering hundreds of pages in length. In February 2022, he convicted the appellant of both offences and stayed the s. 122 charge ( R. v. Kitch , 2022 NSPC 4 ). She was later sentenced to five months’ custody, to be followed by 12 months’ probation. The appellant launched an appeal of both conviction and sentence and was released on bail pending appeal, with conditions. [ 6 ] The appeal was heard on March 7, 2023.

Following oral argument on the conviction appeal, this panel advised it was granting the appeal, quashing the convictions and directing the matters be remitted for a new trial. As a result, it was not necessary to consider the appellant’s sentence appeal. Issues [ 7 ] The Notice of Appeal (Amended) raises a number of grounds alleging errors by the judge. These are broadly grouped as: evidentiary errors, factual errors, misapprehension of evidence and insufficiency of reasons. In oral and written argument, the appellant focused on: (

a) error in

interpretation and application of the evidence to the essential elements of the offences, and in making factual findings on those elements; (

b) error in misapprehending evidence and/or failing to reconcile conflicting evidence; and

(

c) error due to insufficiency of reasons. [8] For the purposes of this decision, I reorganize and focus on these questions: (

a) Did the judge err in not linking his factual findings to the elements of each of the offences? (

b) Did the judge err with respect to sufficiency of reasons? (

c) Did the judge err in not reconciling conflicting evidence? Standard of Review [9] Several standards of review are in play given the alleged errors; they guide the Court’s task. Where, as here, there is anassertion the judge did not properly apply the law to the evidence, that is a question of law attracting a correctness standard of review. The judge had to interpret and apply the law correctly (High Performance Energy Systems v.

Halifax (Regional Municipality), 2023NSCA 16 at para. 34). [10] Neglecting to make any findings on certain of the essential elements of the two offences would also constitute legal error. Again, the standard of correctness applies (R. v. Brake, 2019 NLCA 20 at para. 32). [11] The standard of review in relation to sufficiency of reasons was recently discussed by the Court in R. v. Preston, 2022 NSCA66: [65] The Supreme Court of Canada has repeatedly emphasized that an allegation of insufficient reasons is to be reviewed on appealusing a functional and contextual approach.

Reasons must be assessed with reference to the trial record. They must be factually andlegally sufficient, explaining what the trial judge decided and why, and enabling a meaningful exercise of the right of appeal.[…] See also R. v. J.M.S., 2020 NSCA 71 at paras. 42-43. [12] I am also mindful of the caveat regarding an argument of sufficiency of reasons; it is not a free-standing ground of appeal: Canada (Transportation Safety Board) v. Carroll-Byrne, 2021 NSCA 34 at para. 48; R. v. G.F., 2021 SCC 20 at para. 70. As stated inMcPhee v.

Canadian Union of Public Employees, 2008 NSCA 104 (leave to appeal to SCC refused, [2008] SCCA No. 546): [74] … In other words, one cannot infer simply from the absence of stated reasons that the judge made an error. The appellate courtis entitled to intervene only where effective appellate review is precluded because the basis of the judge’s decision is not apparent whenconsidered in light of the record, the issues and the submissions at trial: see, e.g., R. v. Sheppard, 2002 SCC 26 , [2002] 1S.C.R. 869 at para. 28 and R. v.

R.E.M., 2008 SCC 51 at para. 37, the principles of which have also been applied in civil cases as inF.H. v. McDougall, supra. [Emphasis in original] Analysis [13] Turning to the first issue, the appellant asserts the judge erred in not making sufficient factual findings to support all of theelements of the two offences charged. This requires consideration of what the Crown was required to prove. The Supreme Court ofCanada has previously provided direction:

(

a) in relation to a charge of fraud contrary to s. 380(1), the following elements must be proved: (

i) a dishonest act, established by proof of deceit, falsehood or other fraudulent means, (ii) deprivation, established by proof of detriment, prejudice or risk of prejudice to the economic interests of the victim, caused bythat act, (iii) the accused’s subjective knowledge of their prohibited act, (iv) the accused’s subjective knowledge the prohibited act could result in the deprivation of another (including knowledge theother’s pecuniary interests are at risk). See R. v. Théroux, (SCC), [1993] 2 SCR 5 at paras. 16, 24, 27. (

b) in relation to a charge of breach of trust contrary to s. 122, the fraud must likewise be made out, with the following additionalelements also proved: (

i) the accused was an official, (ii) the accused was acting in connection with the duties of their office, (iii) the accused breached the standard of responsibility and conduct demanded by the nature of the office, (iv) the accused’s conduct was a serious and marked departure from the standards expected of one in the accused’s position ofpublic trust, (

v) the accused acted with the intention to use the public office for a purpose other than the public good (for example, a dishonest,partial, corrupt or oppressive purpose). See R. v. Boulanger, 2006 SCC 32 at para. 58. [14] The judge’s reasons do not reveal, even obliquely, how he applied these legal requirements to the facts of the case. Althoughthe judge reviewed the factual circumstances in his reasons, he did not explain how they supported his ultimate conclusion the Crownhad met its burden. [15] The bulk of the judge’s decision contains a recounting of the circumstances, which must reasonably be inferred to constitute hisfactual findings. The judge then identified the legal test(

s) to be applied, following which he went directly to the conclusions reached,without setting out a bridge of analysis to link the facts to those conclusions. It is not possible to discern from the judge’s reasonswhether the law, which he both cited and is presumed to know, was properly applied. [16] Concerning the actus reus of the offences, the appellant asserts while there was no dispute before the judge that her actionslikely breached IWK policy, it was nonetheless incumbent on the judge to identify how such a violation would amount to dishonesty.

The appellant says the judge erred in appearing to “fixate” on a breach of IWK policy, implying that the dishonesty or dishonest natureof the act could be found in that breach. The Crown responds the judge’s conclusion the policy breaches “crossed the line” to criminalbehaviour are supported by the evidence at trial that the appellant “failed to flag the majority of her personal expenses”, “failed to payback most of those personal expenses until public scrutiny fell” on them, and led others to believe “improper personal expenses were

being paid back”. [ 17 ] In Landry c. R. , 2022 QCCA 1186 , the Quebec Court of Appeal drew on the history of the Supreme Court of Canada’s discussions in Théroux , R. v. Zlatic , 2 SCR 29 and R. v. Riesberry , 2015 SCC 65 to set out the requirements for the actus reus and mens rea of fraud: [Translation] [106] In 1978, Canadian fraud law evolved decisively in the continuation of the Supreme Court's decision in Olan which is based on several English decisions. [107] In this decision, the Supreme Court espouses "an

interpretation liberal of [this] offence". The Dickson C.J. adopts the "risk of harm" test set out in the English decision R. v. Allsop: Deprivation is established if [it] proves that the pecuniary interests of the victim have suffered damage or harm or there is a risk of harm to them. It is not essential that the fraud leads to a real pecuniary loss . The excerpt R. v. Allsop , from the judgment of the Court of Appeal of England, describes well, in my opinion, the state of the law on the role of pecuniary loss in the Fraud (at pp. 31-32): In general, a fraudster wants to gain an advantage first and foremost.

The harm caused to its victim is secondary and incidental. It is "intentional" only because it is part of the expected result of the fraud. If the deception puts at risk the pecuniary interests of the person misled, this is sufficient to constitute fraud, even if no actual loss results and even if the fraudster did not intend to cause any real loss . [. . .] [108] In 1990, in Pereira , Proulx J. of this Court observes that, according to "this modern conception, fraud encompasses necessarily other forms of appropriation of goods that were formerly very compartmentalized and were the subject of scholarly debate.

Since Olan , supra , these debates have become very rare". [109] Fraud has two main elements, the prohibited act (the actus reus ) and the required state of mind (the mens rea ). [110] The actus reus has two elements: 1) the dishonest act and (2) deprivation. [111] The dishonest act is established by the proof of a deception, a lying or "other fraudulent means".

The deprivation element is established if it is proved that, as a result of the dishonest act, the pecuniary interests of the victim has suffered damage or injury or there has been a risk of harm to him. [112] The mental element of fraud requires two states of mind: 1) subjective knowledge of the prohibited act and 2) subjective knowledge that the prohibited act could cause deprivation to another person (which may consist in the knowledge that the pecuniary interests of the victim are jeopardized). [emphasis added; footnotes omitted] [ 18 ] Here, the judge’s analysis of the mens rea and actus reus of the s. 380(1) fraud charge is exquisitely brief: [ 66 ] While Ms.

Kitch may have been an exemplary CEO in many other areas, the question here was her use of corporate funds fraudulently.

[67] As CEO, and having signed documents relating to the same, Ms. Kitch clearly had knowledge that the use of flight passes, andcorporate credit cards were not to be used for personal expenditures. Additionally, each and every expense claim contained certificationthat they were proper charges.

They obviously were not. [68] The numerous flights to and from Toronto for no reason other than personal travel to her home were booked utilizing flightpasses paid for by the IWK on an unauthorized basis. [69] Personal use of corporate funds was clear in taxi charges, hotel stays for relatives, iTunes, Netflix, and data overages. Using arental car for personal use and not advising of, or paying the parking tickets related to the same, fall within the area of fraudulent activity.It should also be noted Ms.

Kitch assured two separate Board Chairs that her expenses were in order, when they clearly were not. [70] The evidence also contains the fact that Ms. Kitch repaid the IWK of over $45,000 for personal expenditures that were incurredby the IWK. [71] The evidence before the court clearly showed that Ms. Kitch used corporate funds for personal expenses, placing IWK funds inpotential peril. [72] On the basis of all the evidence, I find the accused guilty of the one count of fraud. [19] The judge’s treatment of the elements of the s. 122 charge suffers from the same frailty: [74] The leading case regarding this

section is R. v. Boulanger, 2006 SCC 32 , [2006] 2 S.C.R. 49. There the SupremeCourt of Canada set out the elements the Crown needs to prove in this matter. They are: 1. The accused is an official; 2. The accused was acting in connection with the duties of her office; 3. The accused breached the standard of responsibility and conduct demanded of her by the nature of the office; 4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in theaccused’s position of public trust; and 5.

The accused acted with the intention to use her public office for a purpose other than public good. [75] Here, Ms. Kitch was a very high ranking public servant. [76] Her action utilized the credit which came with her office to obtain personal enrichment. Given her position as the ChiefOperating Officer of a Children’s Hospital, which services the entire Maritime region, it demands the strictest adherence to a high ethicalstandard. Ms. Kitch clearly breached that standard. There can be no doubt that the flagrant abuse of flight passes and credit cards are amarked departure from her position of public trust.

The actions taken by Ms. Kitch in her criminal use of public funds can not be seen asother than against the public good. [emphasis in original]

[ 20 ] The trial took almost 2.5 weeks of court time and, as the judge broadly described it, “involved a large number of documentary exhibits and a number of witnesses”.

Yet without knowledge of the record put before the judge, respectfully, I do not see it possible for a reader of the above passages to appreciate the length and breadth of the information the judge needed to assess, nor to garner how that assessment was performed. [ 21 ] Despite the Supreme Court of Canada’s recent caution to appellate courts to refrain from assessing reasons “removed from the live issues at trial” ( G.F. at para. 83 ), it is not possible to appreciate why the judge was left without reasonable doubt.

The judge provided “the what” - his conclusion of the appellant’s guilt - but not “the why” of how he made that decision ( R. v. R.E.M. , 2008 SCC 51 at para. 17 ). [ 22 ] The judge’s decision gives rise to the question whether convictions were entered because of a procedural, policy or ethical breach by the appellant. Such a breach(es) does not, on its own, translate directly to a conviction for fraud or fraud by a public officer.

However, the judge’s statements the appellant engaged in “unauthorized” use of flight passes or that “using” a rental car for “personal use” was “fraudulent activity” do not illuminate his reasoning, absent any amplification of his analysis. [ 23 ] The judge did not have to provide exhaustive reasons that touched on each and every aspect of the evidence. However, we do not know how the judge reached his determination of the actus reus - the guilty act - in relation to the offence of fraud. [ 24 ] The judge’s analysis also prevents appreciation of his consideration of the mens rea of the offences.

For example, the judge remarked on the appellant having repaid monies to her employer. In what way, if at all, did this factor in to his determination of her culpability? One cannot be sure. The judge also said certain charges made by the appellant “fall within the area of fraudulent activity” and that she had placed “IWK funds in peril”. Do these observations go to the mens rea of the offences? That question cannot be answered with certainty.

Without a demonstration of the process of connecting his factual findings to the conclusions he reached it is not possible to grasp how any of what the judge did discuss informed his ultimate determination. [ 25 ] Gaps in the judge’s reasons discussed above seep into and are to some degree replicated in another ground of appeal raised by the appellant, that of sufficiency of reasons. The seminal decision in R v.

Sheppard , 2002 SCC 26 was the spearhead for a series of Supreme Court of Canada decisions heralding a more contemporary approach to the need for “reasoned reasons”: 22 There is a general sense in which a duty to give reasons may be said to be owed to the public rather than to the parties to a specific proceeding. Through reasoned decisions, members of the general public become aware of rules of conduct applicable to their future activities. An awareness of the reasons for a rule often helps define its scope for those trying to comply with it.

The development of the common law proceeds largely by reasoned analogy from established precedents to new situations. Few would argue, however, that failure to discharge this jurisprudential function necessarily gives rise to appellate intervention. New trials are ordered to address the potential need for correction of the outcome of a particular case. Poor reasons may coincide with a just result.

Serious remedies such as a new trial require serious justification. 23 On a more specific level, within the confines of a particular case, it is widely recognized that having to give reasons itself concentrates the judicial mind on the difficulties that are presented [citations omitted]. The absence of reasons, however, does not necessarily indicate an absence of such concentration. We are speaking here of the articulation of the reasons rather than of the reasoning process itself.

The challenge for appellate courts is to ensure that the latter has occurred despite the absence, or inadequacy, of the former. [emphasis added] [ 26 ] Sheppard enumerated the assumptions engaged when assessing sufficiency of reasons: • Judges are presumed to know the law. • Judges do not need to discuss all of the evidence put before them in providing the decision. • Judges do not need to identify each and every conclusion reached nor resolve each and every inconsistency in the evidence. • Judges do not need to take a formalistic approach to giving reasons.

• Judges are not held to a standard of perfection in giving reasons. [ 27 ] R. v. Braich , 2002 SCC 27 continued the Court’s progressive perspective on a judge’s task of providing reasons, echoed again the following year in R.E.M. , when appellate courts were reminded that: “. . . [t]he object is not to show how the judge arrived at his or her conclusion, in a ‘watch me think’ fashion. It is rather to show why the judge made that decision” (para. 17).

What the judge concluded must be linked to why it was concluded, and the connection between the two must be identifiable and understandable: [25] The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve — to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. The functional approach does not require more than will accomplish these objectives.

Rather, reasons will be inadequate only where their objectives are not attained; otherwise, an appeal does not lie on the ground of insufficiency of reasons. . . . [55] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial .

If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue. [emphasis added] [ 28 ] However, R.E.M. also emphasized the restraint to be exercised on appellate review: [56] If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal.

The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law.

Reasonable inferences need not be spelled out. […] Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. […] [ 29 ] The Supreme Court of Canada reviewed Sheppard’s functional approach in G.F. The Court’s comments illustrate this functional approach to the inquiry into sufficiency of reasons continues (paras. 69 and 74). [ 30 ] R v.

Ramos , 2020 MBCA 111 , aff’d 2021 SCC 15 offers a note of caution about confusing sufficiency of reasons with other errors. There, the issue concerned the trial judge’s reasons in relation to how credibility concerns were resolved on the way to convictions for sexual assault and sexual interference.

The Manitoba Court of Appeal reminds appellate courts about the distinct nature of sufficiency of reasons as a ground of appeal: [ 51 ] If the reasons are objectively inadequate, they may nevertheless not be inscrutable for the purpose of appellate review if the “basis of the trial judge’s conclusion is apparent from the record, even without being articulated” ( Sheppard at para 55 ; see also Dinardo at para 32 ). [ 52 ] In deciding whether reasons are “sufficiently amenable to appellate review”, the appellate court should not confuse the need for sufficient reasons with the examination of the sufficiency of the evidence which raises the separate issue of the reasonableness of the verdict ( Gagnon at para 16 ). [ 53 ] The net effect of these legal principles is that the role of the appellate court in deciding a claim of insufficient reasons, while important, is also limited in its scope .

The appellate court cannot substitute its own view of the evidence, and its significance, for that of the trial judge. Findings of fact, including findings relating to credibility, cannot be disturbed absent demonstration of palpable and overriding error ( ibid at para 20; see also R v Jovel , 2019 MBCA 116 at paras 26-30 ). The appellate court cannot “mask” its

disagreement with a trial judge by concluding the reasons provided were insufficient (Braich at para 41; see also R v HSB, 2008 SCC 52at para 15).

Equally true, the appellate court cannot reassess aspects of the case unresolved by the trial judge where the basis for his orher conclusion is not apparent from the reasons or the record (see Dinardo at para 32; and R v Black, 2017 ONCA 599 at para 40, rev’d2018 SCC 10 at para 3). [emphasis added] [31] As noted earlier, an examination of the sufficiency of a judge’s reasons requires this Court to show deference in its review. “Ifdeficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, thedeficiency will not justify intervention . . .” (Sheppard, para. 25). [32] There are many “audiences” to a judge’s decision, and each is entitled to be able to discern the judge’s reasons for thedecision.

This Court discussed the importance of reasons, albeit in the civil context, in S.R. v. Nova Scotia (Minister of CommunityServices), 2012 NSCA 46: [17] In a series of cases, the Supreme Court of Canada has recognized the importance of reasons in various settings: e.g., Baker v.Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39; R. v. Sheppard,2002 SCC 26; R. v. Braich, 2002 SCC 27; R. v. Walker, 2008 SCC 34; F.H. v. McDougall, 2008 SCC 53; R. v. R.E.M., 2008 SCC 51. Their import can be summarized thusly: (

a) the need for, and adequacy of reasons, is contextual and depends upon the adjudicative setting, (Sheppard, para. 19); (

b) reasons inform the parties – and especially the losing party – of why the result came about, (R.E.M., para. 11); (

c) reasons inform the public, facilitating compliance with the rules thereby established, (Sheppard, para. 22); (

d) reasons provide guidance for courts in the future in accordance with the principle of stare decisis, (R.E.M., para. 12); (

e) reasons allow both the parties and the public to see that justice is done and thereby enhance the confidence of both in the judicialprocess, (Baker, para. 39); (

f) reasons foster and improve decision-making by ensuring that issues are addressed and reasoning is made explicit, (Baker, para.39; Sheppard, para. 23; R.E.M., para. 12); (

g) reasons facilitate consideration of judicial review or appeal by the parties, (Baker, para. 39); (

h) reasons enhance or permit meaningful appeal or judicial review, (Sheppard, para. 25; R.E.M., para. 11). [33] Here the judge’s reasons spanned 16 pages. Length of reasons is immaterial as they are “…not measured by the inch or thepound…” (R. v. Lagace, (ON CA), [2003] OJ No. 4328, 178 O.A.C. 391 (ONCA) at para. 32). Rather, theappropriate focus is on these questions: does the judge’s decision permit a functional and contextual understanding of his reasons andconclusions? Is meaningful appellate review possible?

I do not read the judge’s reasons for conviction as: [15] […] sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountabilityand permitting effective appellate review. (R.E.M., supra)

[34] With respect, I am not persuaded the reasons, read as a whole, in the context of the evidence and arguments, adequately explainwhy the decision was reached in this case. I am unable to discern why the judge was satisfied, on the totality of the evidence, of theappellant’s guilt. The reasons do not reveal any consideration of the defence arguments, and thus we do not know how or if the judgeviewed the evidence differently than was suggested by the defence. The error is not in the omission alone, but in reasons that fail toidentify how the judge reached the verdicts beyond a reasonable doubt (R. v.

Dinardo, 2008 SCC 24 at paras. 34-35). I do not see thejudge’s reasons as sufficient to permit meaningful appellate review and avoid intervention by the Court (R. v. D.B., 2022 SKCA 76 atpara. 65). As considered in G.F.: [79] To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review: Sheppard, atpara. 54. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision.

Where all that can be said is a trialjudge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple

interpretations, those that are consistent with the presumption of correctapplication must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 10-12, citing R. v.Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 523-25. It is only where ambiguities, in the context ofthe record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated: Sheppard, at para. 46.

Anappeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole anddetermining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons areambiguous — the appeal court must determine the extent and significance of the ambiguity. [emphasis added] [35] I refer to my earlier discussion of the judge not connecting the facts of the case to the elements of the offences, and its overlapwith this second of the appellant’s arguments.

To the extent the reasons do not reveal that critical connection, there is an inherentambiguity. [36] A further ambiguity relates to the judge’s lone credibility finding. Following a multiple day trial with numerous witnesses, thejudge made no distinct or particular credibility findings in his decision, stating only “Trial Judges are often called on to resolvecredibility between witnesses. In this matter, all the witnesses were credible.” [37] Both the appellant and the Crown agree the case before the judge did not turn on issues of credibility.

Nonetheless, credibilitywas an important consideration because, while the defence called no evidence, not all Crown witnesses who testified were in agreementwith one another. For example, there was conflicting evidence as between Ms. Lucio, Executive Assistant to the appellant, whom thejudge characterized as a “key Crown witness,” and Ms. Feron, IWK legal counsel.

Their evidence diverged sharply on several points,including about particular instructions given to staff concerning assumption by the IWK of certain of the appellant’s personalexpenses.[1] Yet we know nothing of the judge’s view of this evidence despite it potentially going to the dishonesty element of theoffences. [38] On appeal, considerable deference is owed to a judge’s credibility assessments (R. v. Gerrard, 2021 NSCA 59 at para. 47, aff’d2022 SCC 13). Furthermore, as the Crown reminds us, a judge is not required to comment on every inconsistency in conducting acredibility analysis (R. v.

Stanton, 2021 NSCA 57 at para. 67). The Crown maintains because this case did not turn on credibility, thecompeting evidence referred to above did not need to be resolved to any greater extent than was provided in the judge’s comment hefound all the witnesses to be credible.

However, his decision does not tell us anything about the judge’s exercise of weighing andassessing the evidence on the way to making that one credibility determination. [39] I agree with the appellant that the difficulty with the judge’s credibility finding is that none of the conflicting evidence, goingfirst to reliability and then ultimately to credibility of competing witnesses, gets resolved. Or, if it is, not only do we not know how thejudge resolved it, more importantly we do not know why.

As noted in the appellant’s factum: 62 This was not a case that turned on credibility, but at the same time, it was not open to the trial judge to accept all witnesses ascredible when their evidence was not consistent. To make such a finding is to accept inconsistent evidence as being true. The trial judgewas obligated to explain why he found all witnesses credible despite these inconsistencies, and how he would resolve theseinconsistencies.

He simply failed to do so. [40] The dilemma is not merely in the inability to appreciate the “major inconsistencies in the evidence of material witnesses”(Stanton, at para. 67). The decision prevents an understanding of why the judge decided as he did, and if he grappled with contradictionsin the evidence of witnesses who, it can only be inferred, must have been key to the judge’s findings in respect of the elements of the

offences. It begs the question - what use did the judge make of the contradictory evidence? There is nothing to indicate how the judge reached his sole credibility determination “on any reasonable view of the evidence” ( R. v. T.J.F. , 2023 NSCA 28 at paras. 56 and 102 ). [ 41 ] In my view the judge’s reasons do not permit the Court to go as far as concluding “the trial decision can be rendered more comprehensible when read in the context of the record” ( Bruno v.

Dacosta , 2020 ONCA 602 at para. 23 ). [ 42 ] In conclusion, it is not for this Court to attempt to articulate the findings or infer the credibility determinations the judge does not appear to have made, or if he did, have not been sufficiently explained. Regrettably, the decision does not provide “an intelligible pathway to the result” the judge reached ( R. v. Assi , 2023 MBCA 2 at para. 6 ).

The error rests in this Court being left unable to conduct the meaningful appellate review contemplated in the jurisprudence and articulated in R.E.M. : [ 57 ] […] 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] [ 43 ] For the foregoing reasons the appeal was allowed, the convictions quashed and a new trial ordered. Beaton, J.A. Concurred in: Farrar, J.A. Derrick, J.A.