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Fairness - Issue Raised by Tribunal/Court. R. v. Gorges
In R. v. Gorges (Ont CA, 2024) the Ontario Court of Appeal allowed a conviction appeal from charges of "kidnapping, assault, assault with a weapon, uttering death threats and a human trafficking", here on the trial court's application of CCC 276 ['Evidence of complainant’s sexual activity'].
Here the court applies the originally-administrative doctrine of 'procedural fairness' to the criminal context, here where the trial judge made an important ruling without the parties having an oppourtunity to make submissions on it:[62] In this case, I find that the trial judge’s decision to exclude all of the evidence “in relation to [the complainant]’s sexual practices and alleged involvement in a sex trade, possibly encompassing the origin of the debt” fundamentally jeopardized the fairness of the appellant’s trial. As such, it is an irregularity that constitutes a miscarriage of justice.
[63] The trial judge’s rejection of this evidence after closing submissions without giving notice of her concerns and without an opportunity to make submissions breached the appellant’s right to a fair trial. As noted above, the evidence was elicited through cross-examination of the complainant, at which time neither the court nor the Crown raised any significant objections. The appellant’s defence was premised on attacking the complainant’s credibility. In doing so, he relied heavily on the inconsistencies in her evidence, including the portions of her evidence that the trial judge ultimately excluded. The appellant’s reliance on these portions of the complainant’s evidence was clear from the cross-examination of the complainant and, most notably, from his closing submissions.
[64] The trial judge’s decision to exclude the evidence at issue without giving the parties notice or an opportunity to make submissions does not fall within her authority to control the trial proceedings. Such authority is not absolute and requires compliance with the law and procedural fairness: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 49. In the context of proceedings leading to a conviction, even the exercise of a “highly discretionary” judicial power can constitute a miscarriage of justice when it causes unfairness: Tayo Tompouba, at para. 73.
[65] In this case, the trial judge’s approach breached the appellant’s right to procedural fairness because he was never given an opportunity to address the admissibility of the evidence even after it was clear from his closing submissions that it constituted a significant aspect of his attack on the complainant’s credibility: see R. v. Perkins, 2016 ONCA 588, 339 C.C.C. (3d) 438, at para. 35; R. v. Foisy (2000), 2000 CanLII 16959 (ON CA), 51 O.R. (3d) 161 (C.A.), at para. 7; R. v. Wetzel, 2013 SKCA 143, 427 Sask. R. 261, at para. 98. Throughout the trial, and especially on receipt of the appellant’s closing submissions, it would have been clear to the trial judge that excluding the evidence as she did could reasonably be expected to impair his defence. When the trial judge decided to exclude evidence that was heard at trial and relied on in closing submissions, she should have at least invited the parties to make submissions on this issue.
[66] The procedural unfairness in this case closely resembles that which caused the Alberta Court of Appeal to quash the convictions and order a new trial on the basis of miscarriage of justice in R. v. Arens, 2016 ABCA 20, 334 C.C.C. (3d) 379. In that case, a voir dire was held to determine whether some evidence had been obtained in breach of the accused’s rights under the Canadian Charter of Rights and Freedoms. The Crown conceded breaches of ss. 8 and 9, but the trial judge admitted the evidence despite these breaches following the analysis prescribed by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Then, without giving advance notice to the parties, the trial judge stated in his reasons for conviction that he had reversed his earlier voir dire ruling and held that there had been no Charter breach. In the eyes of the majority on appeal, the trial judge’s failure to invite submissions before reversing himself was a “fundamental procedural error” that amounted to a miscarriage of justice and the proviso could not apply: at paras. 16-19, 25-29, and 34.
[67] I acknowledge that the improper exclusion of evidence does not always amount to a miscarriage of justice. In some cases, such an exclusion may be more properly characterized as an error of law. In those circumstances, appellate courts can consider whether the curative proviso in s. 686(1)(b) of the Criminal Code should apply, including whether the error is so minor that it would not be expected to affect the result or whether the evidence against the appellant is overwhelming. However, the legal error in this case is compounded by the lack of procedural fairness. This case is therefore distinguishable from those in which cross-examination was improperly curtailed, but the reviewing court can still determine that further cross-examination on the areas that should have been permitted would have made no difference to the verdict: see e.g., R. v. R.V., 2021 SCC 10, 402 C.C.C. (3d) 295; R. v. Samaniego, 2022 SCC 9, 412 C.C.C. (3d) 7. Here, the appellant’s ability to cross-examine the complainant was not meaningfully impaired. Rather, the unfairness arises out of allowing him to elicit evidence through cross-examination and rely on that evidence in his defence only to find out, as the trial judge is delivering her reasons for judgment, that a significant portion of the evidentiary foundation for his closing was excluded without notice or an opportunity to address the issue.
[68] Ultimately, the total exclusion of evidence related to the complainant’s alleged involvement in the sex trade without notice, and without an opportunity to make submissions or for the appellant to re-orient his defence undermined the fairness of the trial. This was a miscarriage of justice. The proviso cannot be applied to uphold the convictions. . 200 Ferrand Realty Limited v. 1284225 Ontario Limited
In 200 Ferrand Realty Limited v. 1284225 Ontario Limited (Ont CA, 2024) the Divisional Court considered an appeal, here regarding a parking lot commercial assignment.
Here the issue was the duty of a court to allow the parties to make submissions on new court-raised issues:[4] ... It is improper for a judge to raise personally and without notice the issue on which the disposition turns without inviting submissions from the parties: Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 61-63. . 2198806 Ontario Inc. v. The Corporation of the City of Windsor
In 2198806 Ontario Inc. v. The Corporation of the City of Windsor (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against an appeal decision of the Assessment Review Board (ARB) which denied a challenge to a municipality's decision to not grant a property tax refund of the applicant's hotel property when it was shut down for construction to convert to residential rental use.
In these quotes the court comments on a tribunal's duty to advise parties of new issues that it is considering (although in this case any such duty was apparently met):Did the Board deny the Applicant procedural fairness when it interpreted the demolition provision without seeking submissions from the parties on its proposed interpretation?
[22] The Applicant submits the Board breached procedural fairness when it interpreted s. 357(1)(d)(ii) without seeking submissions from the parties on its new proposed interpretation.
[23] There was no breach of procedural fairness in the circumstances of this case. The Board has the authority to control its own process and is owed deference on procedural rulings: Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, at para. 231; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 27.
[24] The parties should have knowledge of the essential issues in dispute so they can meaningfully respond. But the right to be heard does not require a tribunal to provide the parties with a further opportunity to make legal submissions every time a legal argument arises in deliberations that was not mentioned by the parties: Girouard v. Canada (Attorney General), 2020 FCA 129, at paras. 97-98; IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, at para. 93.
[25] Here, the Member did ask the parties for additional submissions on the interpretation of s. 357(1)(d)(ii). At para. 53 of her reasons, the Member noted that, although the parties’ submissions were directed primarily at the quantum of relief, she was concerned about the issue of entitlement under s. 357(1)(d)(ii). She requested and received submissions on entitlement. She therefore proceeded in a procedurally fair manner.
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