|
Criminal - Miscarriage of Justice. R. v. Rees
In R. v. Rees (Ont CA, 2025) the Ontario Court of Appeal considered a further (and much later) appeal emanating from "a referral by the Minister of Justice, made pursuant to s. 696.3(3)(a)(ii) ['Applications for Ministerial Review — Miscarriages of Justice - Powers of Minister of Justice'] of the Criminal Code", which - after much incarceration - set aside a conviction for second degree murder, and ordered a new trial.
The case centers on the non-disclosure by police of a taped conversation with a now-deceased further suspect, which the court now finds to be a miscarriage of justice:[12] For the reasons that follow, we admit the fresh evidence. We agree that the conviction must be quashed on the basis of the non-disclosure of the Raymer tape, but conclude that an acquittal is not an appropriate remedy. As we explain, we decline to grant an acquittal because: (1) a properly instructed jury, acting reasonably, could convict the appellant; (2) it is not clearly more probable that the appellant would be acquitted at a hypothetical new trial; and (3) there is no other basis upon which to grant an acquittal. Central to our decision not to acquit are the appellant’s confession to the murder, the equivocacy of the Raymer tape, and the fact that the appellant’s DNA has since been found on the shirt Darla died in. Also key to our decision not to acquit is our conclusion that the appellant has failed to demonstrate that the police were engaged in a conspiracy. Instead, we order a new trial, in keeping with the appellant’s position that a new trial would be preferable to a judicial stay of proceedings.
....
3. The ministerial review and referral
[82] In January 2018, Innocence Canada filed an application for ministerial review of the appellant’s conviction for second-degree murder pursuant to s. 696.1 of the Criminal Code. The review was predicated upon the alleged non-disclosure of information.
[83] In August 2023, outgoing Minister of Justice David Lametti, supported by incoming Minister of Justice Arif Virani, advised that they were satisfied that there was a reasonable basis to conclude that a miscarriage of justice likely occurred and referred the matter to this court pursuant to s. 696.3(3)(a)(ii) for a “new appeal from conviction.”
....
A. Quashing a Conviction Because of a Miscarriage of Justice
1. The statutory scheme for quashing a conviction
[95] As noted, this appeal comes back to this court by way of a ministerial reference pursuant to s. 696.3(3)(a)(ii) of the Criminal Code. That provision allows the Minister to send an appeal back where there is a “reasonable basis to conclude that a miscarriage of justice likely occurred.” The appeal is to be treated “as if it were an appeal by the convicted person.” In other words, the appeal is to be treated in the normal course, as if it were a “normal” appeal from conviction, carried out in compliance with the statutory provisions of Part XXI of the Criminal Code. Those provisions guide this court as to the procedural, substantive and remedial powers available: Truscott, at para. 70.
[96] Given the appellate nature of the proceeding, the appellant carries “the burden of demonstrating based on evidence admitted on this Reference that there has been a miscarriage of justice”: Truscott, at para. 74; R. v. Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 71. An appellant “also bears the onus of establishing any factual assertions that are material to arguments advanced in support of a motion to adduce fresh evidence”: Truscott, at para. 75; Phillion, at para. 71.
[97] This court’s powers on a conviction appeal are set out in s. 686(1) of the Criminal Code. Section 686(1)(a)(iii) allows the court, on an appeal from conviction, to allow an appeal where it is of the opinion that there has been a miscarriage of justice: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; [Emphasis added.] [98] Section 686(2) of the Criminal Code dictates that where an appeal is allowed on these grounds, it is mandatory to quash the conviction:
686 (2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction … [Emphasis added.]
[99] In the words of the majority in Bouvette, when an appeal has been allowed under s. 686(1)(a), the court of appeal must, “looking backwards”, quash the conviction: at para. 54.
....
3. The conviction must be quashed
[155] For these reasons, we accept the Crown concession, based upon the Raymer tape alone, that there was non-disclosure and that there exists a reasonable possibility that the non-disclosure impacted the overall fairness of the trial process. This was a miscarriage of justice and requires that the appellant’s conviction be quashed. . R. v. J.C.
In R. v. J.C. (Ont CA, 2025) the Ontario Court of Appeal states a criterion for 'miscarriage of justice':[27] To succeed in this appeal, the appellant must persuade this court that the amicus appointment in his hearing created an irregularity so severe that it rendered his hearing unfair in fact or in appearance. He must persuade us that the gravity of the irregularity created such an appearance of unfairness that it would shake the public confidence in the administration of justice: see Kahsai, at paras. 29, 67; and s. 686(1)(a)(iii) of the Criminal Code. . 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.
|
