STRUCTURE AND SUFFICIENCY

1. STRUCTURE AND SUFFICIENCY SOAR 2015 ANNUAL CONFERENCE

2. Chief Justice McLachlin • We should do what we can to make the law clear and accessible to Canadians. The law is, perhaps, the most important example of how words affect people’s lives.

3. Why do we write reasons? • Tell the parties affected by the decision why the decision was made • Show that the evidence and arguments were considered • Provide public accountability: justice is not only done, but is seen to be done • Permit effective appellate review • “Sometimes it just won’t write”

4. Sometimes it just won’t write • Important self-discipline • Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper. (US v Forness, 125 F.2d 928 at 942).

5. To communicate you must know your audience • “The key to successful gardening is thinking like a plant” • It’s the same for judging

6. Whom do you write for? • Many audiences? • My two important audiences • My next door neighbour • The losing party: the most important person in the courtroom is the losing party (Megarry) • Do you really think about your readers when you write?

7. Justice Binnie • Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly toaccount if the reasons for their adjudication aretransparent and accessible to the public and to the appellate courts.

8. This talk • Structure • Accessibility and transparency • Sufficiency • Accountability and transparency

9. STRUCTURE: Why is it important? • Structure (or organization), accessibility and clarity go hand in hand • An evidence “dump” will neither inform nor persuade • Well organized decisions are more likely to be upheld on review or appeal

10. Setting out the evidence • The hardest job in judgment writing • Credibility findings • Findings of fact • The primary task of a trial judge sitting without a jury is to decide the facts. (McLachlin CJC) • Justice lies in the facts

11. An important distinction • Process of getting a handle on the evidence • Process of presenting the evidence to your readers

12. Getting a handle on the evidence • Witness summaries • Time lines • Outlines

13. Presenting the evidence • Reader friendly: an organization that best helps my readers understand and absorb what I have written • Writer friendly: an organization that communicates my decisions effectively, but lets me manage my caseload and still “have a life”

14. My message: you have choices • One size does not fit all • You can organize the evidence differently for different kinds of cases • Do not fall into automatic pilot: consciously choose a structure

15. Conciseness • Today’s readers are impatient • In writing, brevity works not only as a function of space on a page, but the time that an audience is willing to spend with you. (“Keep it Short”, NYT 2014/03/24) • The increasing length of judgments over time suggests an ever widening disjunction between the way judges write and the way information is absorbed and understood by the lay consumer. (Vicki Waye, Who Are Judges Writing For?)

16. Set out only the evidence relevant to the issues • We must fully understand the facts. But that does not mean that we have to write them all out. Only the facts relevant to the legal issues need to be set out. (McLachlin CJC, 2010) • It really is not necessary to incorporate detailed discussion of the evidence, arguments of counsel and other case law to arrive at a fully reasoned judgment. (Waye)

17. The introduction as an organizing device • An introduction is important for readers • Context for the detail in the rest of the decision • An introduction is important for writers • Helps you structure the rest of your decision • When do you write your introduction?

18. Identify the “deep” issue and put it in your introduction • A useful term coined by Bryan Garner • Gets at the difference between the bottom line and the real debate you must resolve • The concrete question that you need to resolve to decide the ultimate question • The final question you pose when you can no longer usefully ask: “And what does that turn on?” • Consider how precisely you want to state the issues you must resolve

19. A simple example: criminal law • A charge of sexual assault where the complainant and the accused agree that they had sexual intercourse • The ultimate question: Is the accused guilty of sexual assault? • And what does that turn on?

20. Has the Crown proved beyond a reasonable doubt that the complainant did not consent to the sex? • The deep issue • Useful technique: exclude what is not in issue • Take it off the table

21. A simple example from the RPD: s. 96 case • The ultimate question: Is the claimant a convention refugee? • And what does that turn on? • First, has the claimant established his identity? • Second, does the claimant have a well-founded fear of persecution because of race?

22. Third, is the claimant unable to avail himself of state protection? • And what does the third issue turn on? • Has the claimant shown on a balance of probabilities that state protection is inadequate? • The deep issue • Suggestion: use the criteria in your statute and the case law to define precisely the issues you must decide

23. Four ways to organize the evidence • Witness by witness • Chronological • Thematic • Issue-driven

24. Our traditional template • Introduction • “Deep” issues • Evidence/Facts • Witness by witness • Chronological • Thematic • Analysis (Issues) • Including submissions of the parties • Conclusion

25. Issue-driven structure: proximity • Introduction • “Deep” issues • Analysis (Issues) • Conclusion

26. Witness by witness • Jim Smith testified… • Sarah Jones gave evidence…

27. Pros and cons • Pros? • Quick and easy: evidence is led before you witness by witness • Useful in very simple cases and cases with one, two or three witnesses • Cons? • Presentation doesn’t mesh with the questions you must decide • Story may be disjointed

28. Chronology • Once upon a time…

29. Pros? • Natural way to tell a story • Relatively quick and easy • Especially useful when what happened when matters • Also effective in straight forward cases with a few issues

30. Cons? • May not mesh with the issues you must decide • Stories don’t have to begin at the beginning • Kitchen sink problem • Edit ruthlessly

31. Thematic • Information grouped under topics or themes important to the issues • May simply impose a thematic structure on a story told chronologically • Criteria in your home statute or case law • Especially when the facts are long or complicated

32. An example • Defendant is charged with an environmental offence—a spill into a watercourse • Main defence: due diligence

33. Topic headings • The defendant’s pollution control plan • The defendant’s equipment • The defendant’s maintenance of the equipment • The defendant’s employees: their hiring and training • The operation of the equipment on the day of the spill… • Witness by witness or chronological organization is likely to be ineffective • Thanks to David Stratas for this example

34. Thematic: pros? • Clearer • Form matches substance • Organization of the evidence meshes with the issues • Information that belongs together joined together • More concise • Why?—because you will omit evidence and facts not needed to discuss the issues you must resolve

35. Cons? • May take more work and time • In some cases, could compromise the telling of the story

36. Issue-driven structure: proximity • Introduction • Analysis (Issues) • Conclusion

37. “One stop shopping” • Legal principles, statutory provisions, positions of the parties, evidence, your findings of fact, your reasons for your findings, and any legal analysis are all discussed under each issue to which they are relevant • For both written and oral decisions

38. The issue-driven template • Introduction • What is this case about? • Deep issues • [Additional background if needed] • [Credibility assessment] • First Issue… • Relevant legal principle(s) and statutory provision(s) • Positions of the parties • Evidence or facts relevant to the issue • Credibility assessment • Findings of fact and credibility • “Because” • [Law applied to your findings of facts conclusion on this issue] • Second Issue… • Conclusion

39. An example: human rights complaint • Lane and OHRC v ADGA (modified) • Lane was an analyst at an IT company • He had a bipolar disorder, which he disclosed when he was hired • Eight days into his job he was fired • Eight witnesses • Paul Lane, Diana Lane, two experts, Lane’s doctor • Three employer representatives

40. Deep Issues: • Prima facie case of disability discrimination? • Duty to accommodate? • Remedy • General and mental distress damages? • Special damages? • Public interest?

41. An issue-driven template • Introduction (deep issues) • [Narrative overview of the case] • Background facts • Lane’s education etc. • Nature of his disability • Employment • Other facts relevant to many of the issues • OR: discuss under the first issue

42. Analysis of issues • Has the Commission established a prima facie case of employment discrimination because of disability? • Parties’ positions • Legal framework • Evidence concerning dismissal • Finding on basis for dismissal • Application of law to findings

43. Has ADGA shown that it could not accommodate Lane without undue hardship? • Parties’ positions • Terms of employment • ADGA’s workplace policies • ADGA’s efforts at accommodating Lane • Law • Finding on whether ADGA met its duty to accommodate

44. What are the appropriate remedies? • (a) is Lane entitled to general and mental distress damages? • Parties’ positions • Plaintiff’s condition after dismissal • Relevant legal principles • Finding • (b) Is Lane entitled to special damages? • Parties’ positions • Lane’s attempts to find another job • Medical evidence • Finding

45. (c) are public interest remedies appropriate? • Evidence on ADGA’s workplace policies and attitude • Appropriate orders • Conclusion

46. Advantages of an issue- driven structure • Clearer for your readers and listeners • Organization of the evidence meshes with the issues • Information that belongs together joined together

47. More concise • Why? • Because you will omit evidence and facts not needed to discuss the issues you must resolve • Because you will minimize repetition • Likely produces a better reasoned decision • Once you get used to it, easier to do

48. Disadvantages • Time consuming until you get used to it • Story may get lost

49. Three questions to ask • What structure should I use to organize the evidence? • If I use an issue-driven structure, what evidence, if any, should I put in the “background” section of my decision, and what evidence should I save for the “analysis” section? • Where should I put the submissions of the parties?

50. Suggestions for organizing the evidence • Thematic or issue-driven structures usually work best • Issue-driven or “near” issue-driven structures will make your decisions clearer and more concise • Chronological structures work best when sequence matters • Witness by witness structures are seldom effective