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Criminal - Miscarriage of Justice. R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal cites an exception to the 'fresh law' on appeal prohibition, here grounded in miscarriage of justice doctrine:(i) The Testimony and Findings Are a Proper New Issue
[95] Appellate courts may become aware of new issues throughout the appeal process, including after the hearing. They have discretion to raise these issues where failing to do so would risk an injustice, including where doing so requires receiving fresh evidence. Before doing so, they must preliminarily assess the new issue and determine that there is good reason to believe that failing to raise it would risk an injustice. This test preserves and safeguards appellate courts’ impartiality: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at paras. 40-48, 55; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 30; R. v. Irwin (1977), 1977 CanLII 2071 (ON CA), 36 C.C.C. (2d) 1 (Ont. C.A.), at p. 3.
[96] The risk of a miscarriage of justice satisfies this test: Mian, at para. 44. As my former colleague Stephen Goudge observed in his report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008) (“Goudge Report”), reliance on unreliable expert evidence can risk a miscarriage of justice: vol. 3, at p. 470; see also White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 12.
[97] Appellate courts evaluating whether to raise a new issue must also consider whether the record is sufficient to resolve the issue and ensure procedural fairness: Mian, at paras. 41, 51-52. They ensure procedural fairness by properly notifying the parties of the issue as soon as is practically possible and providing them an opportunity to make submissions. The court can determine the form of those submissions, but parties also have a role to play and may request oral submissions, further written argument, or both. The court must consider any such request if made: Mian, at paras. 54, 57-59.
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