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Simon Shields, Lawyer

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Appeals - Raising Fresh Legal Issues in Appeal

R v Giamou (Ont CA, 2017)

In this case the Court of Appeal states the general rule that legal positions not properly and previously advanced at trial may not be newly raised on appeal unless specific criteria are met:
[9] In R. v. Reid, 2016 ONCA 524 (CanLII), 132 O.R. (3d) 26, at para. 39, this court confirmed the general rule that courts of appeal will not permit an issue to be raised for the first time on appeal. The rationale is based on: (i) prejudice to the other side which lacks the opportunity to respond and adduce evidence; (ii) the absence of a sufficient record; (iii) the societal interest in finality and the expectation that criminal cases will be disposed of at first instance; and (iv) the responsibility of defence counsel to advance all appropriate arguments at first instance: Reid, at para. 40.

[10] The burden is on the party who seeks to raise the new issue to satisfy three preconditions:

1. the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

2. the failure to raise the issue at trial must not be due to tactical reasons; and

3. the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal: Reid, at paras. 42-43.

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