This week’s top three summaries: R v Hornsby, 2026 ONCA 604: uneven #scrutiny, R v Qita, 2026 ONCA 554: #delay in reasons, R v White Cow, 2026 ABCJ 117: #witness uncalled

R v Hornsby, 2026 ONCA 604

[August 27, 2026] Uneven Scrutiny: General Credibility Assessments Cannot Replace Count by Count Proof [Reasons by Roberts J.A. with M. Tulloch C.J.O. and J. Dawe JJ.A. concurring]

AUTHOR’S NOTE: A generalized finding that a witness—particularly an accused—is not credible cannot become a fixed lens through which the evidence is assessed across multiple counts in an indictment. Such reasoning risks using an adverse credibility finding on one issue as a shortcut to proof of other allegations, rather than independently assessing the evidence relevant to each count. It may also result in uneven scrutiny, where the accused’s evidence is subjected to heightened skepticism while the complainant’s evidence is not subjected to the same critical analysis. This risks effectively reversing the burden of proof. Although “uneven scrutiny” may have fallen out of favour as a formal label in recent appellate jurisprudence, this decision appears to breathe new life into it as a stand-alone ground of appeal.   

B. FACTUAL BACKGROUND

[4] The complainant and the appellant met in 2014 at a festival in Toronto. When they met, the appellant was a migrant worker visiting from Jamaica and had no immigration status in Canada. They married in 2017. The complainant sponsored the appellant and his two children to immigrate to Canada. The appellant and his children became permanent residents.

[5] Their marriage ran into difficulties in 2018. In late 2018, the complainant admitted to infidelity. Their relationship deteriorated, and they agreed that the marriage was over in May 2019. They continued to live together in the complainant’s house until June 29, 2019, when the complainant called the police because the appellant broke down the bedroom door. The appellant testified that he was seeking his passport. The police recommended that the complainant leave the house and arrested Mr. Hornsby for mischief. On July 1, 2019, she reported to the police the incidents that underlie the counts of which the appellant was found guilty.

D. ANALYSIS

a. General principles

[7] The uneven scrutiny ground of appeal is made out where a trial judge errs in the consideration of the evidence by using a different degree of scrutiny in assessing the credibility or reliability of defence evidence than Crown evidence, which renders the trial unfair: R. v. Kiss, 2018 ONCA 184, at paras. 82-83; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-59. Uneven scrutiny may be another way of expressing that the trial judge erred in principle in some manner in making an assessment of credibility: R. v. B.T.D., 2022 ONCA 732, 163 O.R. (3d) 561, at para. 55, citing R. v. Greif, 2021 BCCA 187, at para. 82, leave to appeal refused, [2021] S.C.C.A. No. 182. The argument of uneven scrutiny can serve as an overarching framework in which to consider overlapping arguments for why a trial judge’s credibility findings are problematic. Indeed, it is often “tacked on” to arguments including insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 100.

[8] I acknowledge that the appellant’s uneven scrutiny ground of appeal carries a high threshold. As noted by the Supreme Court, per Karakatsanis J. for the majority, in G.F., at para. 99, this argument commonly features in judge-alone trials where the result turns on the trial judge’s credibility assessments of the evidence given by the complainant and the accused. Appellate courts have noted it is a “notoriously difficult argument to prove” because “[c]redibility findings are the province of the trial judge and attract significant deference on appeal”: at para. 99. As this court observed in Kiss, at para. 83, “courts are justifiably skeptical of what may be veiled attempts to have an appellate court re-evaluate credibility”.[Emphasis by PJM]

[9] The persuasive burden for this argument was outlined by this court in Howe, at para. 59:

To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.[Emphasis by PJM]

[10] Or, stated another way: an appellant must persuade the appeal court that the trial judge relied on “a demonstrably flawed assessment methodology or reasoning process that affected the credibility determination”: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 50.

[12] Relevant to the circumstances of the present case are the following instances of the trial judge’s uneven scrutiny of the evidence that, in Kiss, this court found amounted to an error of law and warranted a new trial:

1. The trial judge took “even the leanest opportunities to find reason to reject” the appellant’s evidence while being “uncommonly forgiving of similar and even more serious problems with [the complainant’s] testimony”: Kiss, at para. 84;

2. The trial judge “expected more of [the appellant] than he did of [the complainant]”, magnifying the importance of minor inconsistencies in the appellant’s evidence while treating as minor glaring inconsistencies in the complainant’s testimony on important issues: Kiss, at paras. 90, 96-103;

3. The trial judge gave “no adverse weight to the complications with [the complainant’s] evidence but instead treated her readiness to admit those difficulties as enhancing her credibility and reliability.” While the trial judge could note the candour of the complainant, he erred because he failed to weigh and consider “the impact of the difficulties she admitted” on her credibility and reliability: Kiss, at paras. 104-7.[Emphasis by PJM]

[13] Again, relevant to the circumstances here, in other cases, appellate courts have found that similar examples constitute uneven scrutiny and reversible error:

1. A trial judge criticized the accused’s evidence as “contrived” because of its detail but accepted the exact same level of detail in the complainant’s version as a mark of credibility and reliability, without explaining why she drew this distinction: B.T.D., at paras. 58-61;

2. The trial judge rejected the accused’s evidence for a reason that applied equally to the complainant and gave intense scrutiny to minor inconsistencies in the accused’s evidence while significant inconsistencies in the complainant’s evidence were not critically assessed: R. v. E.S. (2002), 158 O.A.C. 241 (C.A.), at paras. 8-11;

3. The trial judge failed to conduct a critical assessment of testimonial weaknesses that could undermine the Crown’s evidentiary foundation on an essential element of the offence: Roth, at para. 142;

4. The trial judge made a negative credibility assessment of the accused’s testimony based on stereotypical assumptions and generalizations unsupported by the evidence: B.T.D., at para. 68; Roth, at para. 64-73;

5. The trial judge required the accused to explain himself, thus reversing the burden of proof: B.T.D., at para. 67;

6. The trial judge relied on minor or collateral inconsistencies in the accused’s evidence to reject his credibility while ignoring issues with the complainant’s evidence that go to the heart of her credibility and reliability: R. v. Willis, 2019 NSCA 64, 379 C.C.C. (3d) 30, at paras. 43, 61; and

7. The trial judge’s treatment of consistencies was inconsistent: despite relying on the consistency of the complainant’s testimony with the testimony of other witnesses, she failed to take into account other pieces of evidence that were consistent with the accused’s testimony, in particular that the accused’s testimony aligned very well with the testimony of others: R. v. M.P.H., 2022 BCCA 216, at paras. 47-56.[Emphasis by PJM]

[14] In such cases, even if the evidence at trial was capable of supporting a conviction, where the trial judge has applied different standards to the assessment of prosecution and defence evidence, the appellant has not received a fair trial and thus has been the victim of a miscarriage of justice: B.T.D., at para. 56, citing R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 43

b. Principles applied

[20] The difficulty with the trial judge’s generalized reasoning is that it led her, without examining the appellant’s evidence concerning the individual counts, to summarily reject his evidence whenever it conflicted with the complainant’s evidence, simply because it conflicted. She cursorily dismissed aspects of his evidence as “[n]onsense”, “concocted” or “bizarre”, without meaningfully engaging with his explanations, including his evidence that he regarded himself as a peacemaker, and then used that conclusion as part of generally adverse assessment of his credibility. This approach contributed to the trial judge’s rejection of the appellant’s evidence except where it served to corroborate the complainant’s account and to ignore where the complainant’s account served to the appellant’s evidence.

[21] The trial judge’s approach was flawed and represents reversible error. As I earlier stated, while the trial judge could make general credibility assessments, those assessments could not replace the independent analysis she was required to carry out in relation to each count. Nor could they become a fixed lens through which the evidence relating to each count was assessment. By inflexibly assessing the complainant’s credibility as unfailingly positive and the appellant’s as unrelentingly negative, the trial judge subjected their evidence to uneven scrutiny. She failed to grapple with material difficulties in the complainant’s evidence while relying on perceived difficulties in the appellant’s evidence to reject his testimony. As I explain below, that uneven approach affected her assessment of each count.[Emphasis by PJM]

i. Count Three – sexual assault conviction

[23] There was no issue that the appellant ejaculated on the porch in front of the complainant; however, there was a serious conflict in the evidence as to how it occurred that the trial judge needed to critically examine. The complainant testified that the appellant left the home during an argument at around 2:00 a.m. before he returned ten minutes later and committed this act, ejaculating on her in close proximity without her consent. The appellant denied that he ejaculated on the complainant and maintained that the complainant taunted him to masturbate, which he did at some distance away, while she was smoking marijuana on the porch. The complainant denied that she was smoking marijuana on the porch on that occasion, although she admitted to smoking marijuana on other occasions.

[25] First, the trial judge allowed her strong disapproval of the appellant’s conduct to influence her assessment of his evidence concerning how the incident occurred. She rejected the appellant’s evidence about how the event unfolded based on her censure of his masturbating on the porch: “The whole idea of conducting himself this way in public, even if late at night, on the open veranda of a small semidetached house in a residential area, is absurd. Yet on the evidence of both witnesses, it occurred.” Her clear disapproval of the appellant’s act closed her mind to considering whether the complainant had egged him on to do it, as he testified, and whether the complainant’s evidence at all corroborated what the appellant said.

[26] Instead, the trial judge’s strong disapproval of the act as a “dehumanizing episode” led her to enhance the complainant’s credibility and characterize the appellant’s evidence as to how it happened as “bizarre” and “concocted”. The trial judge made this finding of concoction without any explanation aside from her disapproval of the act and her positive assessment of the complainant. The appellant’s explanation was no more incredible than the complainant’s evidence about the incident, which the trial judge described as “the most bizarre of the allegations”. That the trial judge’s reasoning was unduly affected by her positive assessment of the complainant is also plain from her use of the appellant’s evidence to corroborate the complainant’s account. Even though she indicated she rejected the appellant’s testimony about the incident, the trial judge was nevertheless prepared to accept the appellant’s testimony where it corroborated the complainant’s evidence and served to enhance her credibility.

[27] Further, the trial judge erred by viewing the appellant’s evidence that the complainant was smoking marijuana as an attempt to “besmirch” her character. The complainant herself acknowledged using marijuana on other occasions. There was no basis to treat the appellant’s reference to her marijuana use, without more, as an attempt at character assassination. As earlier noted, the Crown did not ask the trial judge to treat the appellant’s reference to the complainant’s marijuana use as an attempt to denigrate the complainant, nor did the trial judge raise this concern with counsel.

[29] Finally, the trial judge gave no credit to the appellant for admitting the ejaculation against his interest, while, as earlier indicated, in her general assessment of the complainant’s credibility, she used the complainant’s admissions against interest to enhance her credibility.

ii. Count Two – conviction for assault with a weapon

[32] There is no analysis of the appellant’s evidence with respect to this incident other than the trial judge’s cursory, generalized rejection of the appellant’s evidence because she thought his testimony regarding his lack of anger with respect to the laundry basket incident, as with the others, was “Nonsense!”. She seems to have accepted the complainant’s evidence about this incident solely because of the photograph she produced of her scraped arm and elbow. This was in keeping with the trial judge’s general approach that “[w]here the evidence of [the complainant] is either corroborated, or there is consistent evidence, it may augment the weight to be given to it. Some examples are the photographs of injuries consistent with her testimony.” There is no other analysis. The trial judge erred in failing to do so.

[33] Importantly, with respect to this incident, the trial judge failed to reconcile important issues with the complainant’s evidence. Most significantly, the trial judge did not address the complainant’s evidence that her finger was broken, an allegation that was not mentioned to police and emerged only at trial. She was required to consider whether this late-emerging evidence represented an inconsistency or exaggeration and, if so, what effect it had on the complainant’s credibility and reliability.

iii. Count One – sexual assault conviction

[35] The complainant testified that the appellant forced sexual intercourse with her while she attempted to resist him. She additionally testified, at first, that at this point in the relationship, the appellant was sleeping in the basement because she was sleeping with the bedroom door locked. However, in cross-examination, she conceded that it could have been that the appellant was already sleeping and cuddling with her in her bedroom that evening. She explained that it could have been one of the times she consented to sleeping in her bed with him, but she denied consenting to sexual intercourse. The appellant testified that their sexual relations were entirely consensual.

[36] The trial judge erred by failing to analyze the inconsistencies in the complainant’s evidence about how the appellant came to be in her bedroom that evening. Specifically, she did not analyze whether and how the complainant’s initial, more inculpatory account of the encounter, which she corrected on crossexamination, affected her credibility about the incident and whether it corroborated in any way the appellant’s evidence.

[37] The trial judge accepted the complainant’s evidence for two problematic reasons. First, she erred by accepting the complainant’s general statement that she did not want to have sexual relations with the appellant during their separation, rather than the specific evidence related to the count. Second, she incorrectly imported into count one her problematic findings on count three: “His total disregard of her feelings and her dignity a short time prior when he ejaculated on her escalated to this act when he was yet again denied what he felt was his spousal right. I believe [the complainant] and accept that is what happened.”

[38] Finally, she erred by failing to address the appellant’s evidence that the sexual relations were consensual or explain why she rejected it, aside from her reference to her findings on count three.

iv. Count Four – assault conviction

[40] There was no meaningful analysis of the evidence, especially the appellant’s evidence. The trial judge appears to have rejected it simply because she saw his lack of anger as: “Nonsense!” The trial judge’s stated reason for accepting the complainant’s evidence was because of the photograph that she produced at trial. There is no other analysis. The trial judge erred in failing to do so.

E. DISPOSITION

[41] For these reasons, I would allow the appeal, quash the convictions and order a new trial.

R v Qita, 2026 ONCA 554

[July 30, 2026] Long Delay in Reasons: 9 Months  [Reasons by Trotter J.A. with P.J. Monahan and J. Dawe JJ.A. concurring]

AUTHOR’S NOTE: Reasons delivered nine months after a bottom-line ruling can give rise to an objective concern that the reasons were not authentically connected to the verdict. The analysis remains centred on the factors identified in Teskey. In this case, one indication that the reasons were not connected to the verdict was the trial judge’s treatment, in a post-verdict s. 11(b) application, of the nine-month period between the bottom-line ruling and delivery of reasons as “deliberation” time. The Court did not purport to decide whether that characterization was correct as a matter of s. 11(b) jurisprudence. Rather, considered together with the other circumstances, it supported the conclusion that the judge had not completed deliberating at the time the bottom-line ruling was delivered.

A. INTRODUCTION

[1] The appellants were charged with 14 counts under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).

[2] The trial judge delivered a bottom-line decision roughly six months after the close of submissions, collectively finding the appellants guilty on 10 of the 14 counts. After numerous delays, the judge provided written reasons nine months and nine days after her bottom-line ruling. This was 15 months after the close of submissions, and 18 months after the evidence was completed. Five months later, Mr. Qita was sentenced to three and a half years’ imprisonment. The trial judge imposed a total fine of $20,000 on 7891296 Canada Incorporated (“789”).

D. ANALYSIS

[31] At the heart of this appeal is the integrity of the trial judge’s reasons. There is a strong presumption that the reasons of trial judges reflect the actual reasoning that led to the verdict, not an after-the-fact justification of a decision previously made: R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at para. 19.

[32] The presumption of judicial integrity is intimately connected to the presumption of impartiality on the part of Canadian judges, a presumption that is not easily displaced: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. Edwards, 2024 SCC 15, 436 C.C.C. (3d) 1, at para. 84; and R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 32, 117.

[33] The presumption of integrity arises when there is a delay between the pronouncement of the verdict and the subsequent release of reasons for that verdict. This scenario raises concerns that the reasons are not a true account of the reasons that led the judge to announce their verdict.

[39] I emphasize that, in determining whether the presumption of integrity has been rebutted, the focus is from the perspective of an informed and reasonable observer considering the totality of the circumstances: Teskey, at para. 21; R. v. Arnaout, 2015 ONCA 655, 127 O.R. (3d) 241, at para. 33, leave to appeal refused, [2016] S.C.C.A. No. 51. As Doherty J.A. wrote in Cunningham, at para. 35, this objective approach “avoids the impossible task of deciding whether a particular set of reasons in reality describes the actual reasoning path taken by a judge”.

[40] In Teskey, at para. 23, Charron J. identified a number of factors that caused her to conclude that the 11-month delay between the trial judge’s announcement of the verdicts and the release of reasons rebutted the presumption of integrity. For ease of subsequent reference, I have replaced the bullet points in the original text with numbers:

(1) the trial judge’s obvious difficulty in arriving at a verdict in the months following the completion of the evidence;

(2) the absolutely bare declaration of guilt without any indication of the underlying reasoning;

(3) the trial judge’s expressed willingness to reconsider the verdicts immediately after their announcement;

(4) the nature of the evidence that called for a detailed consideration and analysis before any verdict could be reached;

(5) the failure of the trial judge to respond to repeated requests from counsel to give reasons;

(6) the contents of the reasons referring to events long after the announcement of the verdict suggesting that they were crafted post-decision;

(7) the inordinate delay in delivering the reasons coupled with the absence of any indication that his reasons were ready at any time during the 11 months that followed or that the trial judge had purposely deferred their issuance pending disposition of the dangerous offender application.

As Favreau J.A. said in Khawaja, at para. 36, “this list of factors is not comprehensive. Other factors may be relevant depending on the circumstances of the case.”[Emphasis by PJM]

[42] On the first Teskey factor, the trial judge was obviously having difficulty in reaching verdicts following the completion of the evidence. When she delivered her bottom-line verdicts on March 11, 2022, the trial judge mentioned the “voluminous documentary evidence as well as the oral testimony of 10 witnesses, as well as Mr. Qita’s testimony.” The trial judge’s ruling on the s. 11(b) Charter application is also telling in this regard. While she noted that she was “confident” she had reached a “just verdict” by March 2022, she described her deliberations as a “daunting task and at times, a very overwhelming process.” This comment is a good indication that the trial judge found the case to be difficult. This is not meant as a criticism of the trial judge. It was a difficult case.

[43] On the second factor, when the trial judge announced her verdicts, in the words of Teskey, it was a “bare declaration of guilt without any indication of the underlying reasoning”: at para. 23. The Crown argues that we should consider the bottom-line verdicts against the backdrop of the very thorough reasons the trial judge provided in dismissing the motion for directed verdicts. The Crown submits that these reasons add important context to the ultimate verdicts reached by the trial judge. I do not accept this submission.

[44] The issue faced on a motion for directed verdict is very different from the ultimate verdict. The directed verdict decision merely requires an evaluation of whether there is any evidence upon which a trier of fact, properly instructed, could find the accused person guilty on a particular count: R. v. Charemski, [1998] 1 S.C.R. 679, at paras. 1-4….

[46] The fourth factor – whether the nature of the evidence called for a detailed consideration and analysis before any verdict could be reached – was clearly present in this case. The length of delay after the end of submissions was lengthy, and it was also punctuated by adjournments driven by the trial judge. As the trial judge’s thorough reasons both on the directed verdict motion and in her final judgment demonstrate, the case was factually complex. It required a careful and detailed consideration of the evidence.

[47] On the fifth factor – the trial judge’s responsiveness to requests from counsel to give reasons – the trial judge was responsive at times, but not at others. Counsel made numerous requests for the trial judge to deliver her reasons in this case. The trial judge’s out-of-court responses, transmitted through court staff, were often apologetic. But only twice did the trial judge offer an explanation for her delay: once citing difficulties in sitting at a computer, and another time when she referred to an on-going criminal jury trial that was taking longer than she expected.

[48] On the seventh factor referenced in Teskey – whether there was an inordinate delay in delivering the reasons – I have already referenced the fact that the reasons were released over nine months after the trial judge announced her bottom-line verdicts, with minimal explanation of the cause for such delay.

[49] There are two further considerations, beyond the Teskey factors, that are relevant to this case. The first one is revealed in the trial judge’s reasons in which she dismissed the appellants’ post-verdict s. 11(b) Charter application. A contested issue was the time spent waiting for the trial judge to release her reasons, after her bare verdicts were delivered but before sentencing could take place. The appellants took the position that this period of time should be counted in the sentencing delay calculus because it was not “deliberation time” within the meaning of R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364. In other words, the appellants argued that deliberations ended when the bottom-line verdicts were rendered. The Crown submitted that this period was deliberation time, based on the premise that deliberation time includes time required to prepare reasons for decisions already announced. The trial judge accepted the Crown’s argument and counted the entire period of nine months and nine days, from the delivery of her bottom-line verdicts to the release of her written reasons, as deliberation time

[50] I am not concerned with the correctness of the trial judge’s characterization of this period of time for the purposes of reviewing her decision on the s. 11(b) application. The focus is on how a reasonable observer would understand the trial judge’s description of her deliberation process as it relates to the presumption of integrity described in Teskey. As the trial judge said in her Charter ruling when explaining the reasons for her delay in releasing her written reasons, at paras. 57- 58:

The parties needed to know ‘what’ was decided and ‘why’ it was decided. On March 11, 2022, the parties and counsel knew what was decided. They needed the Reasons to understand why that decision had been made.

In my view, the time taken for the preparation and delivery of Reasons does form part of the deliberation time. I rely on K.G.K. in support of this finding as reviewed below. [Emphasis added.]

[52] The Court in K.G.K. acknowledged the conceptual connection between delay for post-trial s. 11(b) purposes on the one hand, and delay in the context of resumption of integrity on the other. However, they are not the same thing. Moldaver J. said, at para. 65:

Where an accused claims that the trial judge’s verdict deliberation time breached their s. 11(b) right to be tried within a reasonable time, they must establish that the deliberations took markedly longer than they reasonably should have in all of the circumstances. This is — appropriately, in my view — a high bar. As indicated, the presumption of judicial integrity operates in this context to create a presumption that the trial judge balanced the need for timeliness, trial fairness considerations, and the practical constraints they faced, and took only as much time as was reasonably necessary in the circumstances to render a just verdict. Only where the trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have will this presumption be displaced. [Italics in original; underlining added.]

[53] Deliberation is the process by which a judge reasons to a conclusion – in a criminal case, a verdict. While reasons are meant to explain that process – i.e., how the verdict was reached – they are not part of it when a decision has already been made. If a judge continues to “deliberate” after a verdict has been rendered, the integrity of that decision becomes questionable, and the reasons justifying the announced decision are suspect.[Emphasis by PJM]

[55] There is one further matter that requires consideration. At the hearing of the appeal, appellants’ counsel produced a document that, in colour-coded form, compared the reasons of the trial judge on the directed verdict motion with her final reasons for judgment….

[56] Without objection from the Crown about the relevance or accuracy of this document, the appellants have demonstrated that roughly 75% of the reasons for judgment are either exactly the same, or contain only very minor variations (e.g., re-wording, typo corrections). In fairness to the trial judge, the new parts of her analysis in her final reasons address principally the defence evidence.

[57] I do not mention this aspect of her reasons as a criticism of the trial judge’s work product. However, in her s. 11(b) Charter ruling, the trial judge emphasized the length of her reasons as partial explanation for the delay that unfolded. It would appear that a good portion of the reasons had already been written….

[59] In conclusion, weighing the various factors from Teskey, and the other features of this case that I have identified, the appellants have met their high burden of displacing the presumption of integrity. I acknowledge that there is nothing specific in the trial judge’s reasons, something telling, that is indicative of a disconnect between the verdicts she reached and the reasons she provided. But that is not the test. The inquiry is an objective one, from the perspective of a reasonable and informed person. In this case, taken together, the factors I have identified would lead a reasonable person to apprehend that the reasons that were produced were an after-the-fact justification for a decision reached months earlier. As the appellants say in their factum:

As spring turned to summer, summer to fall, and fall to winter, she repeatedly rescheduled appearances while she continued to write her reasons. This Court cannot be confident that during this time, the trial judge was merely recording the reasoning that had previously led to her decision. On this record, a reasonable person would view her reasons as a product of after-the-fact justification.[Emphasis by PJM]

[60] Accordingly, for the purposes of appellate review, the trial judge’s reasons for judgment cannot be relied upon. The case must stand or fall on the bottom-line decision announced on March 11, 2022. The Crown does not dispute that these reasons, standing alone, cannot sustain the convictions.

E. DISPOSITION

[63] I would allow the appeals, set aside the convictions, and order a new trial.