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Criminal - Appeals - Powers on Appeal [CCC 686]. R. v. R.M.
In R. v. R.M. (Ont CA, 2023) the Court of Appeal considers several CCC 686 court powers on appeal, including the court's standing to invoke the 'curative proviso' when an appeal shows a non-material error:[12] If I were satisfied that this error caused the appellant no prejudice, his appeal could potentially have been dismissed by invoking the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. However, “it is not open to an appellate court to apply the curative proviso on its own motion”: R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at para. 13 (citation omitted), and the Crown has not invited us to do so, disclaiming reliance on the proviso. In my view, this precludes me from taking this approach here, even if it was otherwise appropriate.
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[39] Section 686(1)(b)(i) of the Criminal Code permits this court to dismiss an appeal when:[T]he 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. [40] Section 686(3) of the Criminal Code provides further that in this situation the court “may substitute the verdict that in its opinion should have been found”. This includes lifting a conditional stay imposed pursuant to Kienapple: see, e.g., R. v. Breton, 2016 ONCA 425, at para. 14. This court may then either affirm the sentence passed by the trial court, impose a different sentence warranted by law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.
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