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Criminal - Appeals - Curative Proviso [CCC 686]. R. v. Jenkins
In R. v. Jenkins (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal.
Here the court considers the CCC 686 'curative proviso':[42] The Crown bears the burden to show that the error caused no substantial wrong or miscarriage of justice, in the sense that there is no reasonable possibility that the verdict would have been different if the error had not occurred. The Crown can meet this burden in one of two ways. The error must either be so minor or harmless that it could not have had any impact on the verdict or, if the error is serious, the case against the appellant must be so overwhelming that any other verdict “would have been impossible to obtain”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34; R. v. Tompouba, 2024 SCC 16, at paras. 55, 74-76. . R. v. Colley
In R. v. Colley (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal regarding child murder.
Here the court considers the 'curative provision' under CCC 686(1)(b)(iv):(b) The Curative Proviso Should Not be Applied in This Case
[94] Further, we would decline to apply the proviso in s. 686(1)(b)(iv) of the Criminal Code, which provides:(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of the offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby[.]
[95] In S.M., the court discussed the ambit of this provision, especially in terms of measuring “prejudice”, at para. 45:In the context of s. 686(1)(b)(iv), “prejudice” may include: (a) prejudice to the ability of an accused to properly respond to the Crown’s case and to receive a fair trial; and (b) “prejudice to the appearance of the due administration of justice”: Burnett, at para. 64; R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at para. 33. In that case, the appeal was allowed, turning on the second prong mentioned above – “prejudice to the appearance of the due administration of justice.” See also James, at para. 17. We proceed on the same basis in this case.
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[96] In R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, Watt J.A. provided, at para. 123, a list of considerations for determining whether a breach of s. 650(1) may be salvaged by this curative proviso:Relevant factors may include, but are not limited to,
i. the nature and extent of the exclusion, including whether it was inadvertent or deliberate;
ii. the role or position of the defence counsel in initiating or concurring in the exclusion;
iii. whether any subjects discussed during the exclusion were repeated on the record or otherwise reported to the accused;
iv. whether any discussions in the accused's absence were preliminary in nature or involved decisions about procedural, evidentiary or substantive matters;
v. the effect, if any, of the discussions on the apparent fairness of trial proceedings; and
vi. the effect, if any, of the discussions on decisions about the conduct of the defence. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal applies the curative proviso of CCC 686(1)(b) to dismiss an appeal, here where mistakes were made in a high-profile triple murder:(3) Curative Proviso
[37] Section 686(1)(b)(iii) of the Criminal Code permits an appellate court to dismiss an appeal, even when errors were committed in the court below, if the court is “of the opinion that no substantial wrong or miscarriage of justice has occurred”.
[38] There are two categories of error that will be subject to the proviso: (1) where the error is so harmless or minor that it could not have had an impact on the trial, or (2) where there are serious errors that would justify a new trial but for the fact that the evidence was so overwhelming that any other verdict would have been impossible to obtain: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34. On the second category, depriving the accused of another trial is “justified on the ground that the deprivation is minimal when the invariable result would be another conviction”: R. v. S.(P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at p. 916; see also R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 31. . R. v. A.B.
In R. v. A.B. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal sexual assault appeal. Here the court considers the curative provision of CCC 686(1)(b)(iii) (which it does not apply):[45] The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code allows the court to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred”. The Crown may rely on the curative proviso where the error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable: R. v. Samaniego, 2022 SCC 9, at para. 65; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. The Crown does not suggest that the evidence in this case was overwhelming. Therefore, in deciding whether to apply the curative proviso, the issue is whether “the error was harmless or trivial, such that there is no reasonable possibility that the verdict would have been different had it not been made”: Samaniego, at para. 65. . R. v. Layne
In R. v. Layne (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, in part through the application of the "curative proviso in s. 686(1)(b)(iii) of the Criminal Code":[57] However, this error does not require a new trial because the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, applies. The error was harmless because the trial judge relied on multiple, interlocking, and mutually reinforcing non-erroneous reasoning pathways as a sufficient basis for his decision. There is no reasonable possibility that the verdict would have been different but for this error.
[58] I conclude that the Crown properly raised the proviso. The Crown can raise the proviso implicitly by arguing that a legal error did not prejudice the accused: R. v. Tayo Tompouba, 2024 SCC 16, at paras. 105-106. The Crown did so by making that argument here. Specifically, the Crown pointed to the trial judge’s finding that the discrepancy was not significant and submitted that, even if the prior descriptions were not admissible for their truth, they minimized the discrepancy by showing that it might reflect memory loss.
[59] Under the proviso’s first branch, the appellate court can dismiss the appeal if the trial judge makes a serious legal error as long as it can trace that error’s impact and ensure that it made no difference to the verdict. Thus, the erroneous admission of hearsay may be a harmless error if it was insignificant to the determination of guilt: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 30; R. v. Gunn, 1972 CanLII 174 (SCC), [1974] S.C.R. 273, at pp. 275-277. Appellate courts assess whether an error is harmless by considering it in the context of the entire case, although this assessment does not consider the strength of the Crown’s case: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 93.
[60] Tracing an error’s impact can be more challenging in jury trials because juries do not provide reasons: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 61. It is easier in trials by judge alone if the reasons for judgment provide a roadmap for appellate review. By assessing those reasons, courts may be able to determine that a non-erroneous reasoning path was a sufficient basis for the decision and that any reasoning tainted by the error was not integral to the verdict: see, e.g., R. v. Boughner (2002), 2002 CanLII 44975 (ON CA), 159 O.A.C. 316 (C.A.), at paras. 26-31; R. v. MacIsaac, 2017 ONCA 172, 347 C.C.C. (3d) 37, at para. 50, leave to appeal refused, [2017] S.C.C.A. No. 152; R. v. W.O., 2020 ONCA 392, 454 D.L.R. (4th) 54, at para. 41, aff’d, 2021 SCC 8, [2021] 1 S.C.R. 99. The reasons thus allow the court to assess whether the error is significant in the context of the entire case: R. v. Heltman, 2019 BCCA 468, 384 C.C.C. (3d) 65, at paras. 54, 59-65.
[61] The trial judge’s reasons show that he relied on multiple, interlocking, and mutually reinforcing non-erroneous reasoning pathways to find that the finger tattoo discrepancy was not significant and conclude that the appellant was guilty. As I have explained, the finger tattoo discrepancy was less significant because of the cursive writing hand tattoo’s proximity to the appellant’s pinky finger, and the trial judge reasonably concluded that it had limited value because the victim admitted that his memory deteriorated over time. The trial judge also considered the fact that the victim’s earlier July 5 statements mentioned that the appellant had hand tattoos to reinforce his memory loss finding. This was a legitimate use to assess the probative value of the victim’s in-court testimony, not a hearsay purpose: Tat, at pp. 656-657; Campbell, at paras. 87, 97. Further, the trial judge relied on the close match between the victim’s description of the appellant and the independent confirmatory evidence to find that there was no reasonable doubt.
[62] These interconnected, error-free reasoning pathways permit me to trace the impact of the trial judge’s error and conclude that it would have made no difference to the verdict. It is apparent from his reasons that these pathways were a sufficient basis for his decision, and the fact that he did not state this expressly does not prevent me from drawing this conclusion: Boughner, at para. 31. His brief discussion of the prior descriptions’ hearsay uses was thus insignificant and peripheral to his determination of guilt, like the errors at issue in Boughner, MacIsaac, W.O., and Heltman.
[63] Three additional contextual factors support my decision that the first proviso branch applies. First, the finger tattoo discrepancy did not bolster the appellant’s alternative suspect argument because Mr. McNichols, like the appellant, had cursive writing hand tattoos but lacked finger tattoos. This is significant because that argument was one of the appellant’s principal submissions at trial. Second, the trial judge did not make any additional errors capable of compounding his erroneous use of the July 5 prior descriptions: Jacquard, at para. 60. Third, because the appellant did not testify, his failure to provide an innocent explanation for the evidence pointing to his guilt that the trial judge’s non-erroneous reasoning pathways relied on supports applying the proviso: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 99-100, 103-104, citing R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, at p. 418. . R. v. M.C.
In R. v. M.C. (Ont CA, 2023) the Court of Appeal considers the CCC s.686(1)(b)(iv) 'curative provision', largely focussing on the R. v. Simon [2010 ONCA 754] treatment of the proviso with respect any prejudice caused by a CCC 650 'accused to be present' issue [at paras 66-89].
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