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Criminal - Appeals - s.686(1)(a,b). R. v. Vassel
In R. v. Vassel (Ont CA, 2024) the Ontario Court of Appeal considered the CCC 686(1)(b)(iii) curative proviso:[33] Section 686(1)(b)(iii) of the Criminal Code permits this court to dismiss an appeal even after an error of law has been identified, if we are “of the opinion that no substantial wrong or miscarriage of justice has occurred”. This requires the Crown to establish that there is no “reasonable possibility that the verdict would have been different had the error . . . not been made”: R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at pp. 616-17; see also R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. . R. v. Tayo Tompouba
In R. v. Tayo Tompouba (SCC, 2024) the Supreme Court of Canada allowed an appeal from a BC Court of Appeal which "erred in law by imposing on Mr. Tayo Tompouba the burden of proving, in addition to a breach of s. 530(3) Cr. C. [SS: 'Language of Accused'], that his fundamental right to be tried in the official language of his choice had in fact been violated".
Here the court canvasses the CCC 686(1)(a,b) 'appeal against conviction' and curative proviso provisions:D. Powers of a Court of Appeal Hearing an Appeal Against a Conviction
[53] Section 686 Cr. C. sets out the powers of a court of appeal hearing an appeal against a conviction. The relevant portions of this section read as follows:686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where:
(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,
(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; (1) Principle Underlying Any Intervention by a Court of Appeal Under Section 686(1)(a) Cr. C.
[54] Section 686(1)(a) Cr. C. allows a court of appeal to intervene only if the appellant is able to show that the verdict is unreasonable, that an error of law was made or that a miscarriage of justice occurred. These three grounds for intervention have the same underlying principle: a court of appeal can generally intervene only where the error was prejudicial to the accused. Otherwise, it is an error without legal consequence, except in cases where the error, without causing direct prejudice to the accused, is so serious that it shakes public confidence in the administration of justice (see R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51, quoting R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89; R. v. Kahsai, 2023 SCC 20, at paras. 67‑68).
[55] Section 686(1)(a)(i) Cr. C. is concerned with situations that are inherently prejudicial to the accused, that is, situations in which the accused’s conviction is unreasonable in the sense that the guilty verdict cannot reasonably be supported by the evidence or is vitiated by illogical or irrational reasoning (R. v. Brunelle, 2022 SCC 5, at para. 7, citing R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; see also Sinclair, at para. 76, per Charron J., concurring, quoting R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 219). For its part, s. 686(1)(a)(ii), when read along with the curative provisos in s. 686(1)(b)(iii) and (iv), presumes that an error of law is prejudicial to the accused unless the Crown can show the contrary with the requisite degree of certainty (see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 16; Sinclair, at para. 76, quoting Morrissey, at p. 219; S. Coughlan, Criminal Procedure (4th ed. 2020), at pp. 566‑67, 574, 578 and 581‑82). Finally, s. 686(1)(a)(iii) Cr. C. permits a court of appeal to intervene in any other situation that causes prejudice giving rise to a miscarriage of justice. This will be the case where the accused was convicted following a trial that was unfair in fact or in appearance, for example where the accused entered a guilty plea without being aware of a collateral consequence of the plea that, if it had been known, would have induced the accused to act differently (Davey, at para. 51, quoting Wolkins, at para. 89; Kahsai, at para. 67, citing Khan, at paras. 69 and 73; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 5, 25 and 39, per Moldaver, Gascon and Brown JJ., and at paras. 44, 79 and 85, per Wagner J., dissenting).
[56] In short, as a general rule, a court of appeal may intervene only if the error was prejudicial to the accused. Unreasonable verdicts (s. 686(1)(a)(i) Cr. C.) and miscarriages of justice (s. 686(1)(a)(iii) Cr. C.) are usually, by nature, prejudicial to the accused, while errors of law (s. 686(1)(a)(ii) Cr. C.) are presumed to be prejudicial (see Khan, at para. 16; Coughlan, at pp. 574‑75 and 582).
(2) Importance of Distinguishing Errors of Law From the Other Two Types of Errors Referred to in Section 686(1)(a) Cr. C.
[57] Therefore, the primary relevance of the distinction between errors of law and the other types of errors referred to in s. 686(1)(a) Cr. C. lies first and foremost in the allocation of the burden of showing that the error was or was not prejudicial. Where the error is one of law, because such an error is presumed to be prejudicial to the accused, the Crown bears the onus of establishing the absence of prejudice at the stage of the analysis under one of the two curative provisos. Where the error is of another type, the onus of showing that it was prejudicial rests on the accused appealing their conviction (see R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, at para. 38; Morrissey, at p. 219; Coughlan, at p. 574).
[58] This means that, in principle, it is less onerous for an accused to establish an error of law than to establish the other two types of errors referred to in s. 686(1)(a) Cr. C. In the former case, showing the existence of an error or irregularity is sufficient to give rise to a presumption of prejudice and thus to justify appellate intervention. The onus then falls on the Crown, for the purposes of the analysis under one of the curative provisos in s. 686(1)(b) Cr. C., to rebut this presumption, if it so wishes, by showing that the error of law in question did not in fact cause any prejudice to the accused (see Khan, at para. 23; Coughlan, at pp. 574‑75 and 582; M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2023 (30th ed. 2023), at No. 51.238). In the latter case, simply showing the existence of an error or irregularity is not sufficient. The accused must also show that it was prejudicial to them.
[59] Here, no one is arguing that the breach of s. 530(3) Cr. C. in issue resulted in an unreasonable verdict (s. 686(1)(a)(i) Cr. C.). Rather, it is the distinction between an error of law (s. 686(1)(a)(ii) Cr. C.) and a miscarriage of justice (s. 686(1)(a)(iii) Cr. C.) that lies at the heart of this case. It is therefore important to focus the analysis on these two types of errors, starting with an error of law.
(a) Error of Law (Section 686(1)(a)(ii) Cr. C.)
[60] Section 686(1)(a)(ii) Cr. C. has been interpreted very broadly by the courts. An examination of the jurisprudence leads to the conclusion that an error of law under this provision is any error in the application of a legal rule, as long as the error is related to the proceedings leading to the conviction and was made by a judge. In such circumstances, the trial court’s judgment constitutes “a wrong decision on a question of law” under s. 686(1)(a)(ii) Cr. C., which allows prejudice to be presumed and may justify quashing the conviction.
....
(i) Error in the Application of a Legal Rule
[61] To begin with, an error of law under s. 686(1)(a)(ii) Cr. C. involves an error in the application of a legal rule. In this regard, three clarifications must be made.
[62] First, an error in the application of a legal rule may originate in various ways, including through a misinterpretation of the legal rule (Khan, at para. 22; Arradi, at para. 39; Coughlan, at pp. 574‑75; T. Desjardins, L’appel en droit criminel et pénal (2nd ed. 2012), at pp. 147‑49).
[63] Second, the application error may occur through a decision or an improper omission, that is, an unjustified failure to apply a legal rule. While it is true that the expression “a wrong decision on a question of law” in s. 686(1)(a)(ii) Cr. C., coupled with what the majority stated in Khan (see paras. 7, 17 and 22), may at first glance support the idea that an error of law is confined to a decision that is wrong in law, it is clear from this Court’s jurisprudence that such an error may also involve an improper omission. More specifically, failing to apply a legal rule — for instance, by not complying with it — may constitute an error of law. This will be the case where, for example, a judge fails to give an instruction to a jury despite being required to do so (see R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at p. 1318; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 32‑34; R. v. Abdullahi, 2023 SCC 19, at paras. 48‑49; Coughlan, at p. 575); to correct prejudicial remarks made by Crown counsel concerning a defence witness (R. v. Romeo, 1991 CanLII 113 (SCC), [1991] 1 S.C.R. 86, at p. 95); to appoint an interpreter when it is apparent that the accused is having difficulty expressing themself or understanding the proceedings for language reasons, such that the failure infringes the accused’s constitutional right protected by s. 14 of the Charter (R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at pp. 980‑81 and 1008‑9); to comply with a procedural rule (see R. v. Mitchell (1997), 1997 CanLII 6321 (ON CA), 36 O.R. (3d) 643 (C.A.); R. v. Sciascia, 2016 ONCA 411, 131 O.R. (3d) 375, at paras. 82‑83 and 86, aff’d on other grounds, 2017 SCC 57, [2017] 2 S.C.R. 539, at paras. 7 and 45; Coughlan, at p. 566; Khan, at para. 16); or to provide sufficient reasons in support of a decision (R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 108, per Brown and Rowe JJ., concurring, citing, inter alia, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25 and 28). In short, the jurisprudence indicates that an error in the application of a legal rule may involve either a decision that is wrong in law or an unjustified failure to comply with a legal rule. Indeed, this surely explains why Arbour J. stated in Khan that an error of law under s. 686(1)(a)(ii) Cr. C. “can be” — but is not limited to being — “any decision” (para. 22).
[64] Third, for a presumption of prejudice to arise, it is not necessary that the legal rule erroneously applied be substantive in nature. This is because it is well settled that a procedural irregularity, whether trivial or serious, may constitute an error of law under s. 686(1)(a)(ii) Cr. C. and trigger the application of the curative provisos in s. 686(1)(b) Cr. C. (Khan, at para. 16; R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, at pp. 134‑35, per Gonthier J., dissenting, quoting R. v. Cloutier (1988), 1988 CanLII 199 (ON CA), 43 C.C.C. (3d) 35 (Ont. C.A.), at pp. 46 and 48). In short, the prejudice presumed as a result of an error of law under s. 686(1)(a)(ii) Cr. C., which makes it possible to quash the conviction, may arise from a breach of either a substantive or a procedural right (see Coughlan, at p. 576).
[65] Next, to constitute an error of law under s. 686(1)(a)(ii) Cr. C., the erroneous application of a legal rule must be related to the proceedings leading to the conviction and must be attributable to a judge. Only where these two criteria are met can it be concluded that the error tainted the trial court’s judgment, with the result that prejudice can be presumed and the conviction quashed.
(ii) Related to the Proceedings Leading to the Conviction
[66] To taint the trial judgment in this manner, the error in the application of the legal rule does not have to be “linked to the final verdict” or be an error or irregularity on which the verdict “was or could have been based so as to prejudice the accused” (Khan, at paras. 20 and 22). The error must nevertheless be related to the proceedings leading to the conviction, such that the error “contributed to the ultimate verdict as they all do” (Khan, at para. 22; see also Vauclair, Desjardins and Lachance, at No. 51.236).
(iii) Made by a Judge
[67] Furthermore, to taint the trial judgment in this manner, the error in the application of a legal rule must have been made by a judge. In the majority of situations, it will be the trial judge who commits the error or irregularity. This will be the case, for example, where the trial judge fails to give an instruction to the jury despite being required to do so (see Chambers, at p. 1318; Van, at paras. 32‑34; Abdullahi, at paras. 48‑49; Coughlan, at p. 575); convicts an accused of contempt of court instanter when it is neither urgent nor imperative to do so, thereby unfairly depriving the accused of the procedural guarantees to which they are entitled (see Arradi, at paras. 36 and 40); violates a Charter right, like the right to an interpreter, through a wrong decision or an improper omission (see Tran); wrongly decides to dismiss a party’s application for an order for a new trial (see Khan); excludes the accused from their trial in contravention of s. 650 Cr. C. (see R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694; R. v. D.Q., 2021 ONCA 827, 411 C.C.C. (3d) 292); or wrongly decides not to rectify a division and severance order made by a judge who was not the trial judge (see R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333).
[68] However, this will not always be the case. The error in the application of a legal rule may sometimes be made by a judge who is not the trial judge. For example, this will be the case where a judge who is not the trial judge makes a wrong decision on an accused’s fundamental right to be tried in the official language of their choice. This wrong decision may constitute an error of law under s. 686(1)(a)(ii) Cr. C., even if it is not brought to the trial judge’s attention (Beaulac, at paras. 11 and 53‑55, rev’g (1997), 1997 CanLII 3579 (BC CA), 120 C.C.C. (3d) 16 (B.C.C.A.), at paras. 1, 54 and 57‑58). This will also be the case where an irregularity that amounts to an error of law, and that can therefore be remedied under s. 686(1)(b)(iv) Cr. C., occurs prior to trial (see Khan, at paras. 16 and 18; Coughlan, at pp. 566‑67). The example of a justice of the peace who fails to read the charges to an accused or who does not properly “put the accused” to an election as to the mode of trial, in violation of s. 536(2) Cr. C., is a good illustration of this situation (see Mitchell).
[69] In light of this three‑part definition, it is easy to understand why preference should generally be given to the framework for miscarriages of justice under s. 686(1)(a)(iii) Cr. C. in cases where an accused raises on appeal, for the first time, the ineffective assistance of their counsel (Khan, at para. 17; see also R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. White, 2022 SCC 7) or the invalidity of their guilty plea in the circumstances described in Wong. In such situations, it is not appropriate to analyze the ground of appeal from the standpoint of an error of law under s. 686(1)(a)(ii) Cr. C., because both of these cases usually involve no error by a judge in the application of a legal rule. The same is true where, for example, what is being alleged is a violation of a legal rule by a person other than a judge, such as the Crown (see R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777; Davey). Similarly, this explains why the miscarriage of justice framework applies in cases where it is alleged that a judge wrongly exercised a highly discretionary power (Fanjoy v. The Queen, 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233, at pp. 238‑39; Kahsai, at paras. 72 and 74). While the exercise of a highly discretionary power might technically fall within the definition of an erroneous “application” of a legal rule, this exercise is so dependent “on the facts and circumstances in each case” that this Court preferred rather to specify that it “will not be determined by the simple application of a fixed rule of law” (Fanjoy, at pp. 238‑39).
[70] I recognize that, in the past, certain errors or irregularities corresponding to the definition of errors of law under s. 686(1)(a)(ii) Cr. C. were analyzed on the basis of the framework for miscarriages of justice and then characterized as such. The issue of judicial bias springs to mind: the error of a judge who dismisses a recusal motion or who fails to recuse themself when there is a reasonable apprehension of bias has historically been analyzed under the miscarriage of justice framework (J. Sopinka, M. A. Gelowitz and W. D. Rankin, Sopinka, Gelowitz and Rankin on the Conduct of an Appeal (5th ed. 2022), at p. 295). But in such a case the characterization of the error under s. 686(1)(a) Cr. C. has no impact on the appellant’s burden of proof or on the outcome, such that “the same conclusion would be reached no matter which route was followed” (Coughlan, at p. 577). Indeed, regardless of whether an error of law or a miscarriage of justice is involved, an appellant who alleges that the trial judge was biased as a ground for quashing their conviction must establish a reasonable apprehension of bias, which will “inexorably” lead the court of appeal to order a new trial (R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, at para. 5). The distinction between a miscarriage of justice and an error of law that cannot be cured by the application of the curative provisos because of the prejudice it caused is a theoretical one in this type of situation (Coughlan, at pp. 574 and 577; see also, e.g., Beaulac, at paras. 53‑54, and Tran, at pp. 1008‑9).
[71] To summarize, an error of law under s. 686(1)(a)(ii) Cr. C. is any error in the application of a legal rule, as long as it is related to the proceedings leading to the conviction and was made by a judge. In addition, the error may have been made through a decision or an improper omission. It may also concern either a procedural or a substantive legal rule. This definition is consistent not only with the language and inherent mechanics of s. 686 Cr. C. but also with the manner in which this provision has been interpreted by the courts over time. It also has the advantage of being accessible, intelligible, clear and predictable (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 68). It results in a wide range of errors being classifiable as errors of law under s. 686(1)(a)(ii) Cr. C., which in fact explains why “[m]ost errors that are not based on the unreasonableness of a verdict will relate to an error of law” (Coughlan, at p. 574; see also Khan, at para. 25).
(b) Miscarriage of Justice (Section 686(1)(a)(iii) Cr. C.)
[72] By comparison, miscarriages of justice under s. 686(1)(a)(iii) Cr. C. are a residual category of errors that exists to ensure that a conviction [translation] “can be quashed where a trial was unfair, regardless of whether the error was procedural or substantive in nature” (Vauclair, Desjardins and Lachance, at No. 51.250; see also Khan, at paras. 18 and 27). The question to be decided in this regard is whether the irregularity was so severe that it rendered the trial unfair or created the appearance of unfairness (Khan, at para. 69, per Lebel J., concurring; see also Fanjoy, at pp. 238‑40; Davey, at paras. 50‑51; Kahsai, at paras. 67‑69). The miscarriage of justice standard is “a high bar”, which “is even higher when claimed based on perceived unfairness instead of actual prejudice” (Kahsai, at para. 68).
[73] Courts have found a miscarriage of justice in a wide range of circumstances (see A. Stylios, J. Casgrain and M.‑É. O’Brien, Procédure pénale (2023), at paras. 18‑87 to 18‑81). Examples of a miscarriage of justice include the ineffective assistance of counsel (see White), a breach of solicitor‑client privilege by defence counsel (Kahsai, at para. 69, citing R. v. Olusoga, 2019 ONCA 565, 377 C.C.C. (3d) 143) and a misapprehension of the evidence that, though not making the verdict unreasonable, nonetheless constitutes a denial of justice (R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1; Coughlan, at pp. 576‑77). Unfairness resulting from the exercise of a “highly discretionary” power, related to proceedings leading to a conviction and attributable to a judge will also generally be analyzed under the miscarriage of justice framework (Fanjoy, at pp. 238‑39; Kahsai, at paras. 72 and 74).
(3) Curative Provisos in Section 686(1)(b) Cr. C.
[74] Section 686(1)(b) Cr. C. contains two curative provisos that can be relied upon by the Crown (R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, at p. 17; R. v. McMaster, 1996 CanLII 234 (SCC), [1996] 1 S.C.R. 740, at para. 37). The proviso in s. 686(1)(b)(iii) Cr. C. allows a court of appeal to dismiss an appeal on the ground that an error or irregularity did not result in any substantial wrong or miscarriage of justice (Khan, at paras. 16 and 18). The second proviso, set out in s. 686(1)(b)(iv) Cr. C., allows the same result to be reached where an error or irregularity causes a loss of jurisdiction, as long as the accused suffered no prejudice and the trial court at least maintained jurisdiction over the class of offences (Khan, at paras. 11, 16 and 18, citing Cloutier with approval; R. v. Esseghaier, 2021 SCC 9, [2021] 1 S.C.R. 101, at para. 2; Vauclair, Desjardins and Lachance, at No. 51.245).
[75] The common purpose of the two curative provisos is to permit the dismissal of an appeal where the error or irregularity shown by the accused was not prejudicial to them (see Khan, at paras. 23 and 30; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose‑leaf)), at § 31:1376.50; Vauclair, Desjardins and Lachance, at No. 51.238; Coughlan, at pp. 574‑75 and 582). Ultimately, the provisos attempt “to prevent the annulment of criminal verdicts or mistrials for reasons that relate essentially to technicalities of the law, which have no real bearing on the fundamental legality or fairness of a trial” (Khan, at para. 98, per LeBel J., concurring).
[76] The curative proviso in s. 686(1)(b)(iii) Cr. C. generally applies where there is no reasonable possibility that the verdict would have been different in the absence of the error. This occurs in two cases: (1) where the error or irregularity in question is minor or harmless, such that it had no impact on the verdict; or (2) where the error or irregularity, despite being serious enough to warrant a new trial, caused no substantial wrong or miscarriage of justice because the evidence against the appellant is so overwhelming that a trier of fact would inevitably convict (see Tran, at pp. 1008‑9; Khan, at paras. 28‑31; Van, at paras. 34‑36; R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 85; R. v. Samaniego, 2022 SCC 9, at para. 65; Vauclair, Desjardins and Lachance, at Nos. 51.237‑51.238). As for the curative proviso in s. 686(1)(b)(iv) Cr. C., the question of prejudice has thus far been analyzed on the basis of the principles of s. 686(1)(b)(iii) (see Khan, at paras. 16 and 18; Esseghaier, at paras. 51‑53; Vauclair, Desjardins and Lachance, at No. 51.245). As a result, “section 686(1)(b)(iv) is largely parallel to section 686(1)(b)(iii), but applies only to a narrow range of procedural irregularities which create a jurisdictional error that could not be classified as a pure error of law” (Coughlan, at p. 582).
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