R. v. Khan

R. v. Khan
Collection
Supreme Court Judgments
Date
2001-12-07
Neutral citation
2001 SCC 86
Report
[2001] 3 SCR 823
Case number
27395
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Major, John C.; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Manitoba
Subjects
Criminal law
Notes
SCC Case Information: 27395
Decision Content
R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86
Mohamed Ameerulla Khan Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Khan
Neutral citation: 2001 SCC 86.
File No.: 27395.
2000: December 12; 2001: December 7.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for manitoba
Criminal law -- Appeals -- Powers of court of appeal -- Error of law -- Miscarriage of justice -- Curative proviso -- Whether trial judge erred in refusing to order mistrial where jury was provided with transcripts containing submissions made in absence of jury -- Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) .
After a trial before a judge and jury, the accused was convicted of the first degree murder of his wife. During the course of its deliberations, the jury requested transcripts of the pathologist’s testimony. Approximately six and a half hours after the transcripts were delivered to the jury, defence counsel discovered that the copy of the transcript given to the jury inadvertently contained the record of matters discussed in the absence of the jury during a voir dire. As such matters should have been expunged, defence counsel moved for a mistrial on the basis that the proceedings had become tainted and the trial was unfair. The defence argued that the jury had learned that the accused had made comments that were ruled inadmissible. In the defence’s view, the jury would speculate as to those comments and would draw an adverse inference against the accused. The trial judge denied the request for a mistrial. The offending transcripts were retrieved and the jury was provided with clean copies. The trial judge cautioned the jury that they were to rely solely on the evidence that was put before them. Once the jury returned a guilty verdict of first degree murder, the trial judge requested further submissions regarding the possibility of granting a mistrial. After submissions by both counsel, the trial judge again declined to declare a mistrial. The accused’s appeal to the Court of Appeal was dismissed.
Held: The appeal should be dismissed.
Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Binnie and Arbour JJ.: The question in this case is not whether the giving of the unedited transcripts to the jury was a miscarriage of justice or a procedural irregularity, but whether the trial judge made an error of law in refusing to declare a mistrial.
Apart from unreasonable verdict cases, most appeals against conviction are based on errors of law within the meaning of s. 686(1) (a)(ii) of the Criminal Code . In some cases, when the court has concluded that the error alleged was at most an error of mixed fact and law, it has characterized the issue as falling under s. 686(1) (a)(iii), that is, a miscarriage of justice. In such a case, further use of the proviso in s. 686(1) (b)(iii) is obviously precluded and the appeal must be allowed. The appeal in this case is entirely governed by the provisions of ss. 686(1) (a)(ii) and 686(1) (b)(iii). There are essentially two classes of errors that have led to a proper application of the curative proviso: “harmless errors”, or errors of a minor nature having no impact on the verdict; and serious errors that would justify a new trial but for the fact that the evidence was so overwhelming that no substantial wrong or miscarriage of justice occurred despite the error. In every case, if the reviewing court concludes that the error led to a denial of a fair trial, the court may properly characterize the matter as one where there was a miscarriage of justice, in which case no remedial provision is available and the appeal must be allowed.
This case does not require an assessment of the overall strength of the Crown’s case at trial. When asked to declare a mistrial, the trial judge was essentially asked whether it was likely that the exposure by the jury to the tainted transcripts could have affected the jury to the point that the entire trial was compromised and that no remedy other than a new trial was available. Read in full, the offending passage in the transcripts handed to the jury refers to several matters that were not in evidence when the argument took place in the absence of the jury. A fair assessment of the impact that the transcript could have had on the jury must be made on the assumption that the jury read the transcript and understood that counsel for the accused was concerned that the jury should not find out that his client had made statements that the court had ruled inadmissible. This is how the trial judge approached the issue, and that is why she cautioned the jury as she did. She did not identify specifically the impugned passages, so as not to aggravate the damage, if any, but she clearly instructed the jury to disregard any references to matters that were not properly in evidence before them. The trial judge was obviously concerned with the effect and consequences of what had transpired and she took seriously the application for a mistrial. However, she made no error when she exercised her discretion to deny the motion for a mistrial, nor did she err in declining to enter a mistrial after the jury had returned its verdict. The trial judge was in a privileged position to assess the possible impact of the mishap on the jury, and the effectiveness of the sharp warning that she issued. There is no basis upon which it could be said that she was wrong in that judgment call. The information before the jury was at most an innuendo. Taking the case at its highest from the accused’s point of view, the admonition issued by the trial judge to the jury was sufficient to remedy any ill effect that the unedited transcripts might have had on the jury. As the trial judge did not err in rejecting the motion for a mistrial, there is no need to turn to the proviso.
Per LeBel J.: The question before this Court is whether the conviction should be reversed because either an “error of law” or a “miscarriage of justice” has occurred and, if so, whether the curative proviso should be applied. In order for a verdict to be reversed under s. 686(1)(a)(ii) of the Code, it is not sufficient to demonstrate that a legal mistake has occurred. The judgment must have been based or possibly based on that mistake, so as to prejudice the accused. The other situations that may justify the intervention of a court of appeal fall into a residual category. Section 686(1)(a)(iii) refers to miscarriages of justice, which cover irregularities other than the errors of law mentioned in s. 686(1)(a)(ii) and which may have rendered the trial unfair or created the appearance of unfairness for the accused. Although ss. 686(1)(a)(ii) and 686(1)(a)(iii) are distinct, they are nevertheless closely related. Both involve situations where an irregularity has occurred during the course of the trial. Whether the defect at trial appears to have been an error of law or an irregularity falling within the residual category of miscarriage of justice, the circumstances must be considered to see if the error was merely peripheral or could have played a significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance. If the error of law could not have prejudiced the accused, the conviction will be upheld. Reaching a conclusion in that respect will require a balancing taking into account the circumstances of the case and, more particularly, the nature and impact of the error of law. In that regard, the analysis under s. 686(1)(a)(ii) may call upon similar considerations as under s. 686(1)(a)(iii).
An irregularity can be said to constitute a miscarriage of justice when the irregularity was severe enough to render the trial unfair or create the appearance of unfairness. Contrary to the analysis under the proviso, the emphasis is not so much on the final verdict and the overall strength of the evidence against the accused, but rather on the gravity of the irregularity and the effect it may have had on the fairness, or appearance of fairness, of the trial. The gravity of irregularities which may occur must inevitably be evaluated by courts on a case‑by‑case basis. This being said, certain elements can provide reference points in determining whether a miscarriage of justice has occurred. First, one should ask whether the irregularity pertained to a question that was central to the case against the accused. An irregularity that is related to a central point of the case is more likely to be fatal than one concerning a mere peripheral point. Second, the court of appeal should consider the relative gravity of the irregularity: how much influence it could have had on the verdict; the chances that the apprehended detrimental effect of the irregularity did in fact occur; and the likely severity of these detrimental effects on the accused’s case. When the court considers the gravity of the error, it should also consider the possible cumulative effect of several irregularities during the trial. Third, one should be mindful of whether the trial was by jury or by a judge sitting alone. Sometimes, irregularities can have a more severe impact on the fairness of the trial when they occur during a trial before a judge and a jury. Fourth, one should ask whether the irregularity may have been remedied, in full or in part, at the trial. Fifth, the effect of the irregularity on the fairness of the trial and the appearance of fairness should be considered. Sixth, the attitude of defence counsel if and when he was confronted with the irregularity may have an impact. If defence counsel had an opportunity to object to the irregularity and failed to do so, this militates in favour of finding that the trial was not unfair.
The second stage of the analysis is the applicability of the curative proviso. In order to invoke s. 686(1)(b)(iii) successfully, the Crown must demonstrate that any reasonable judge or jury would have rendered the same verdict. Even though an important error of law could have influenced the decision, it would not be appropriate to reverse the conviction when the evidence is so overwhelming against the accused that it would inevitably lead to the same result. Similarly, when the court of appeal finds that the evidence against the accused would inevitably have led to the same result, it can uphold a conviction despite having found that a procedural irregularity not amounting to a miscarriage of justice had occurred. Regardless of whether the proviso is used to cure an error of law or a procedural irregularity not amounting to a miscarriage of justice, it may be used only when the conviction was inevitable.
The leak of the tainted transcript to the jury was certainly an error or an irregularity. This mistake does not seem to be in the nature of an error of law. The judge did not make a decision on a question of law that was among the bases of a conviction. The error was more akin to a procedural irregularity that happened by accident. Thus, as this case does not seem to fall squarely within the error of law category, this becomes a matter to be examined under the residual category of procedural irregularity. The irregularity did not amount to a miscarriage of justice. First, it did not relate to a point that was particularly central in law or in fact to the case against the accused. Second, the irregularity was not of significant importance. The fact that the trial was held before a judge and jury militates in favour of a finding of unfairness. However, all doubts concerning the unfairness or appearance of unfairness of the trial are put to rest when the remedy chosen by the judge when she realized that the tainted transcripts had been leaked to the jury is considered.
Since no miscarriage of justice occurred, it is unnecessary to examine whether the conviction could be saved under the curative proviso.
Cases Cited
By Arbour J.
Referred to: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Cloutier (1988), 43 C.C.C. (3d) 35; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Fenton (1984), 11 C.C.C. (3d) 109; R. v. Karpinski, [1957] S.C.R. 343; R. v. Simons (1976), 30 C.C.C. (2d) 162; R. v. Sarazin (1978), 39 C.C.C. (2d) 131; R. v. Dwyer, [1980] 1 S.C.R. 481, rev’g (1978), 42 C.C.C. (2d) 83; Brodie v. The King, [1936] S.C.R. 188; R. v. Vallee, [1969] 3 C.C.C. 293; R. v. Major, [1977] 1 S.C.R. 826; R. v. Côté, [1978] 1 S.C.R. 8; Elliott v. The Queen, [1978] 2 S.C.R. 393; Kipp v. Attorney‑General for Ontario, [1965] S.C.R. 57; R. v. Sheets, [1971] S.C.R. 614; R. v. Meunier, [1966] S.C.R. 399; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Trenholm v. Attorney‑General of Ontario, [1940] S.C.R. 301; Doyle v. The Queen, [1977] 1 S.C.R. 597; R. v. Krannenburg, [1980] 1 S.C.R. 1053; R. v. Joinson (1986), 32 C.C.C. (3d) 542; Bell (Re), [1988] B.C.J. No. 1897 (QL); Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. B. (L.C.) (1996), 104 C.C.C. (3d) 353; R. v. Silvini (1991), 68 C.C.C. (3d) 251; R. v. Cameron (1991), 64 C.C.C. (3d) 96; Colpitts v. The Queen, [1965] S.C.R. 739; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Bevan, [1993] 2 S.C.R. 599; Chibok v. The Queen (1956), 24 C.R. 354; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. MacGillivray, [1995] 1 S.C.R. 890; R. v. Haughton, [1994] 3 S.C.R. 516; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Gunn v. The Queen, [1974] S.C.R. 273; R. v. Klatt (1994), 94 C.C.C. (3d) 147; R. v. Wong (1992), 12 B.C.A.C. 211; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Nijjar, [1998] 1 S.C.R. 320; Alward v. The Queen, [1978] 1 S.C.R. 559; Ambrose v. The Queen, [1977] 2 S.C.R. 717; Dufresne v. La Reine, [1988] R.J.Q. 38; R. v. Welch (1980), 5 Sask. R. 175.
By LeBel J.
Referred to: R. v. Duke (1985), 22 C.C.C. (3d) 217; R. v. Watson (1991), 4 B.C.A.C. 253; R. v. Armstrong, [1970] 1 C.C.C. 136; R. v. R. (R.) (1994), 91 C.C.C. (3d) 193; Emkeit v. The Queen, [1974] S.C.R. 133; R. v. Paterson (1998), 102 B.C.A.C. 200; R. v. Cameron (1991), 64 C.C.C. (3d) 96; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Joanisse (1995), 102 C.C.C. (3d) 35; R. v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. G. (S.G.), [1997] 2 S.C.R. 716; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Hertrich (1982), 67 C.C.C. (2d) 510; Olbey v. The Queen, [1980] 1 S.C.R. 1008; Cathro v. The Queen, [1956] S.C.R. 101; R. v. Ferguson (2000), 142 C.C.C. (3d) 353, rev’d [2001] 1 S.C.R. 281, 2001 SCC 6; R. v. Martineau (1986), 33 C.C.C. (3d) 573; R. v. Lessard (1992), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205; R. v. Taillefer (1995), 100 C.C.C. (3d) 1, 40 C.R. (4th) 287; R. v. Siu (1998), 124 C.C.C. (3d) 301; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Corbett, [1988] 1 S.C.R. 670; Imrich v. The Queen, [1978] 1 S.C.R. 622; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22; R. v. Terceira (1998), 123 C.C.C. (3d) 1, aff’d [1999] 3 S.C.R. 866; R. v. P. (G.) (1996), 112 C.C.C. (3d) 263; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. Cleghorn, [1995] 3 S.C.R. 175; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. S. (P.L.), [1991] 1 S.C.R. 909; Meunier v. The Queen (1965), 48 C.R. 14, aff’d [1966] S.C.R. 399; R. v. Cloutier (1988), 43 C.C.C. (3d) 35; R. v. Simard (1989), 36 Q.A.C. 74; R. v. Fabre (1990), 46 Q.A.C. 133; R. v. Deyardin (1997), 119 C.C.C. (3d) 365, [1997] R.J.Q. 2367; Primeau v. La Reine, [2000] R.J.Q. 696; Taillefer v. La Reine, [1989] R.J.Q. 2023.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, s. 440.1 [now s. 485].
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) [am. c. 27 (1st Supp.), s. 145; am. 1991, c. 43, s. 9 (Sch., item 8)].
Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 145.
Authors Cited
Béliveau, Pierre, et Martin Vauclair. Traité général de preuve et de procédure pénales, 8e éd. Montréal: Thémis, 2001.
Cohen, Stanley A. “Controlling the Trial Process: The Judge and the Conduct of Trial” (1977), 36 C.R.N.S. 15.
Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, vol. 2, 2nd ed. Aurora, Ont.: Canada Law Book, 1987 (loose‑leaf updated August 2001, release 49).
McKinnon, Gil D. The Criminal Lawyers’ Guide to Appellate Court Practice. Aurora, Ont.: Canada Law Book, 1997.
Mewett, Alan W. “No Substantial Miscarriage of Justice”. In Anthony N. Doob and Edward L. Greenspan, eds., Perspectives in Criminal Law. Aurora, Ont.: Canada Law Book, 1985, 81.
Price, Ronald R., and Paula W. Mallea. “‘Not by Words Alone’: Criminal Appeals and the No Substantial Wrong or Miscarriage of Justice Rule”. In Vincent M. Del Buono, ed., Criminal Procedure in Canada. Toronto: Butterworths, 1982, 453.
APPEAL from a judgment of the Manitoba Court of Appeal (1999), 138 Man. R. (2d) 23, 202 W.A.C. 23, [1999] 10 W.W.R. 207, 136 C.C.C. (3d) 391, [1999] M.J. No. 278 (QL), dismissing the accused’s appeal from his conviction for first degree murder. Appeal dismissed.
Martin D. Glazer, for the appellant.
Richard A. Saull, for the respondent.
The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Major, Binnie and Arbour JJ. was delivered by
Arbour J. --
I. Introduction
1 My colleague Justice LeBel has reviewed the relevant facts in his reasons. I only find it necessary to expand slightly on the facts surrounding the central issue before us in this appeal.
2 A few hours after the jury began its deliberations in this murder case, it requested transcripts of proceedings to review the evidence of certain witnesses. Neither counsel nor the trial judge realized at that time that the transcripts in question had not been edited to delete submissions that had been made in the absence of the jury. The jury was in possession of these unedited transcripts for approximately six and a half hours until defence counsel became aware of the content of the transcripts and informed the court of the problem.
3 The jury was provided with a total of approximately 350 pages containing the evidence of four different witnesses. In an early portion of the transcripts, in the course of the direct examination of Dr. MacDonald, defence counsel indicated that he had certain objections to make and that it should be dealt with in the absence of the jury. The record then indicates that the jury was asked to retire. Immediately after that entry, the transcript reveals as follows:
THE COURT: Yes. Was that your concern?
MR. GLAZER: No. My concern -- I might as well deal with it now -- is that I hope my friend isn’t going to ask this witness to reveal hearsay that he relied on that has not been tendered as evidence in court because that would be inadmissible. For example, if certain photographs are not filed and the witness says he’s basing his opinion on photographs that haven’t been filed, that is inadmissible. If he says that he’s basing his opinion based on temperature he believes was taken, but that temperature was not filed as an exhibit or tendered as evidence in the trial, then, the jury has to be told to disregard that.
THE COURT: That ultimately -- I mean I don’t know what is coming from the Crown, but certainly the doctor is entitled to say what it was that he used to form his opinion and if the underpinnings are not subsequently proven to support his opinion, that that’s --
MR. GLAZER: I beg to disagree, My Lady. The law as I understand it is -- for example, My Lady had ruled that certain comments by the accused are inadmissible. If the witness during the course of his testimony refers to those comments as forming the basis of some of his opinion, it would be grounds for a mistrial. He can only refer to what is before the jury; he can’t refer to evidence that is not before the jury. [Emphasis added.]
4 Immediately after the transcripts were retrieved from the jury, defence counsel moved for a mistrial. On that occasion, he did not object in particular to the portion of the transcript quoted above. Rather, he referred to information on the voir dire that made reference to a prior trial. Having heard the submissions, the trial judge ruled as follows:
Well, at this stage of the proceedings, what I propose to do, and I appreciate your comments and I share the concern that you have expressed, but at the same time, we’ve gone to this stage, and what I propose to do is to bring the jury in and to indicate and not to red flag whose transcript and not to indicate what areas but simply to say that there were some matters in the transcripts that were not properly before them and ought not to form part of their consideration and to caution them on that and to indicate, again, that only evidence that was properly before them is to be considered; and, in addition, to indicate that we will keep all of the transcripts here until we’re in a position to provide them with clean copies of exactly what was before them.
5 After the jury returned a verdict of guilty the trial judge asked the jury to retire so she could talk to counsel alone. After the jury left, the judge indicated that before formally recording the verdict, she wanted to raise the matter of the transcripts that were sent inadvertently to the jury during their deliberations. She said that she was still entertaining the possibility of declaring a mistrial at this stage and would like to hear the submissions of counsel on that issue. In the course of these submissions, defence counsel referred to the passage quoted above as an indication that the jury could only have assumed that his client had made a confession “or something of that nature”. Having heard the submissions, the trial judge concluded that she was not certain that she had jurisdiction to declare a mistrial after a verdict had been rendered by the jury. Then, she indicated “with some reluctance” that she would bring the jury back. At the request of the defence, the jury was polled and confirmed the verdict.
6 The issue before us is to characterize properly this ground of appeal, within the meaning of s. 686 of the Criminal Code, R.S.C. 1985, c. C-46 , and to decide how it should affect the ultimate disposition of the appeal.
7 In my view, if the unedited transcript mistake had not been detected until after the trial, it might have been possible to view this ground of appeal as falling under s. 686(1) (a)(iii). However, this matter was raised at trial, and the possibility of a mistrial was considered by the trial judge on two occasions. A proper characterization of the issue before us, in my opinion, is whether or not the trial judge made an error of law in refusing to declare a mistrial either when it was first requested of her, or after the verdict. If we find that an error of law was committed, we must then turn to the remedial proviso in s. 686(1) (b)(iii) and determine whether, notwithstanding the error, the appeal should be dismissed on the basis that no substantial wrong or miscarriage of justice has occurred.
8 This method of analysis has been consistently followed by appellate courts and by this Court in determining the nature of errors that are alleged to have occurred at trial, and the proper remedial response mandated by the Criminal Code . This is also the approach that was followed by the Manitoba Court of Appeal in the present case.
9 In my view, the question in this case is not whether the giving of the unedited transcripts to the jury was a “miscarriage of justice” or a “procedural irregularity”. The question is whether or not the trial judge erred in law by not declaring a mistrial as a result of that occurrence. As a preliminary matter, I will therefore set out in more detail why, in my view, s. 686(1) (b)(iv) has no application here. I will then review the guiding principles in s. 686(1) (a)(ii) and 686(1) (b)(iii).
II. Relevant Statutory Provisions
10 Criminal Code, R.S.C. 1985, c. C-46
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;
(b) may dismiss the appeal where
(i) the 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,
(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; or
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;
III. Analysis
A. Section 686(1)(b)(iv) of the Criminal Code
11 Properly interpreted in accordance with the principles set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, this subsection expands the remedial powers of courts of appeal by permitting the dismissal of appeals in case of any procedural irregularity previously perceived as having caused a loss of jurisdiction at trial, as long as the accused suffers no prejudice and as long as the trial court maintained its jurisdiction “over the class of offence[s]”. I agree with the analysis of the scope of the section provided by Goodman J.A. in R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.), and adopted by Gonthier J. in R. v. Bain, [1992] 1 S.C.R. 91 (in dissent, with Iacobucci J. and McLachlin J., as she then was, concurring). In Cloutier, Goodman J.A. reviewed the legislative history of the provision and noted that it was first initiated in the House of Commons on February 7, 1984, to be eventually enacted and proclaimed into force on December 4, 1985. The section was first introduced in the House seven days after a January 31, 1984 judgment of the British Columbia Court of Appeal in R. v. Fenton (1984), 11 C.C.C. (3d) 109, which deplored the unavailability of curative provisions in the Code in the case of jurisdictional errors such as those caused by the accused having been even inadvertently excluded from small and sometimes uneventful portions of his trial.
12 Although Goodman J.A. suggested that the section might have been enacted in response to the line of cases leading to Fenton, supra, it is not clear to me that the section targeted exclusively the procedural irregularity caused by the absence of the accused during his trial. There were numerous other procedural irregularities in the criminal process which caused loss of jurisdiction over the person, if not over the offence with which the accused was charged. The real focus of the enactment of s. 686(1)(b)(iv) in 1985 seems to have been to put an end to the jurisprudence holding that procedural errors having caused a loss of jurisdiction in the trial courts could not be cured, even on appeal.
13 Indeed, prior to the enactment of the Canadian Charter of Rights and Freedoms , criminal procedure was replete with complex decisions distinguishing between the various jurisdictional consequences of procedural errors, pre-trial, at trial and post-conviction. Such issues included: whether the expiration of a time limitation within which to prosecute an offence summarily provided a defence or caused a loss of jurisdiction (R. v. Karpinski, [1957] S.C.R. 343); issues of territorial jurisdiction (R. v. Simons (1976), 30 C.C.C. (2d) 162 (Ont. C.A.); R. v. Sarazin (1978), 39 C.C.C. (2d) 131 (P.E.I.S.C.)); jurisdictional challenges to the preliminary inquiry through prerogative writs, as well as challenges to the form of the information or indictment (R. v. Dwyer, [1980] 1 S.C.R. 481, rev’g (1978), 42 C.C.C. (2d) 83 (Ont. C.A.)); whether defective indictments could not or would not be cured on appeal (Brodie v. The King, [1936] S.C.R. 188); whether informations or indictments “disclos[ing] no offence known to the law” were curable on appeal (R. v. Vallee, [1969] 3 C.C.C. 293 (B.C.C.A.), at p. 295; R. v. Major, [1977] 1 S.C.R. 826; R. v. Côté, [1978] 1 S.C.R. 8, and Elliott v. The Queen, [1978] 2 S.C.R. 393); and, whether remedies such as prerogative writs and appeals were available to review rulings on the alleged improper form of the charge (Kipp v. Attorney-General for Ontario, [1965] S.C.R. 57. See also R. v. Sheets, [1971] S.C.R. 614.)
14 In addition to the cases dealing with the jurisdictional consequences of violating s. 650 of the Criminal Code , mandating the presence of the accused at trial (see R. v. Meunier, [1966] S.C.R. 399, and R. v. Barrow, [1987] 2 S.C.R. 694), there were many other procedural irregularities which were said to be of a jurisdictional nature -- rather than mere “errors of law” -- and as such raised the question of whether they could be remedied on appeal by the use of the proviso contained in s. 686(1) (b)(iii). (See for instance irregularities in jury selection, R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), or the discussion of the effects of errors in the procedure by which the accused elected his mode of trial in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41.) The matter was further complicated by the distinction drawn by the courts between loss of jurisdiction over the person of the accused, which could be subsequently remedied, and loss of jurisdiction over the offence, which could not (see Trenholm v. Attorney-General of Ontario, [1940] S.C.R. 301; Doyle v. The Queen, [1977] 1 S.C.R. 597; R. v. Krannenburg, [1980] 1 S.C.R. 1053).
15 This question of incurable loss of jurisdiction was first addressed by Parliament in 1976 by the enactment of s. 440.1 of the Criminal Code, R.S.C. 1970, c. C-34, which eventually, after further amendment, became the present s. 485 . The original section cured only failures to comply with the Code’s provisions on adjournments and remands, which were already a great source of “loss of jurisdiction”. Indeed, prior to the enactment of that provision, jurisdiction could be lost by remands for more than eight days without the accused’s consent. Yet this Court in Krannenburg, supra, at p. 1056, held that the new section still could not cure a “[l]oss of jurisdiction over the offence”. In 1985, in the same Bill enacting s. 686(1) (b)(iv), s. 440.1 was further amended to its present form. The parallels between s. 686(1) (b)(iv) and s. 485 of the Criminal Code were highlighted by Macfarlane J.A. in R. v. Joinson (1986), 32 C.C.C. (3d) 542 (B.C.C.A.), at p. 548, and by Shaw J. in Bell (Re), [1988] B.C.J. No.1897 (QL) (S.C.). Section 485 now provides that jurisdiction over an offence is not lost by reason of the failure of the trial court to “act in the exercise of that jurisdiction at any particular time, or by reason of a failure to comply with any of the provisions of this Act respecting adjournments or remands”.
16 In short, s. 686(1)(b)(iv) of the Code was enacted in the face of a body of case law that was becoming increasingly technical and complex and which had restricted considerably the possibility for appellate courts to conclude that an error at trial was not such that it required a setting aside of the verdict. This provision is rarely invoked, because procedural irregularities that result from an error of law, which is most of them, are properly dealt with under s. 686(1)(b)(iii) of the Code. Prior to the enactment of s. 686(1) (b)(iv) in 1985, some procedural irregularities, although they amounted to errors of law, had been ruled “jurisdictional” and courts had decided that they could therefore not be cured by the proviso since jurisdiction had been lost. In that context, it is clear that the new provision was not meant to deal with trivial procedural irregularities which in any event would have been curable under the proviso as long as they constituted errors of law. I agree with Goodman J.A. in Cloutier that s. 686(1) (b)(iv) was enacted to cure serious procedural irregularities, otherwise amounting to errors of law, in cases where under the then existing case law, jurisdiction over the person, but not over the offence, had been lost. I also agree with Goodman J.A. that under this new subparagraph, since the procedural irregularities in issue would have been serious ones, it is appropriate to infer prejudice without requiring in every case that the accused demonstrate prejudice. The inference may of course be rebutted and the test of prejudice under that subsection should be the same as the no substantial wrong or miscarriage of justice, under s. 686(1) (b)(iii), which has been the subject of extensive pronouncement by this Court.
17 Finally, in my view, if an issue is raised on appeal that cannot be said to constitute an error of law, there is no access to the remedial provisions of s. 686(1) (b). In such a case, the court must determine whether the appeal should be allowed “on any ground [that] there was a miscarriage of justice” under s. 686(1) (a)(iii). If the error alleged is one of mixed fact and law, it may have to be dealt with under s. 686(1) (a)(iii) (see Fanjoy v. The Queen, [1985] 2 S.C.R. 233). If an accused were to complain on appeal of having been deprived of the effective assistance of counsel, when the issue had not been raised at trial and therefore the trial judge had made no ruling on it, it could be said that no error of law is alleged, but that the appeal should be allowed on the ground that there was a miscarriage of justice (R. v. B. (L.C.) (1996), 104 C.C.C. (3d) 353 (Ont. C.A.); R. v. Silvini (1991), 68 C.C.C. (3d) 251 (Ont. C.A.)). In the same way, if the complaint on appeal was of improper contact between a juror and the accused discovered after the verdict (see R. v. Cameron (1991), 64 C.C.C. (3d) 96 (Ont. C.A.)), the ground of appeal would be based on s. 686(1) (a)(iii). In such cases, a finding of miscarriage of justice under s. 686(1) (a)(iii) cannot in my view be cured under any of the remedial provisions contained in s. 686(1) (b) and the appeal must be allowed.
18 In summary, when an error or irregularity of a procedural nature has occurred at trial, s. 686 provides that:
- If the procedural irregularity amounts to or is based on an error of law, it falls under ss. 686(1) (a)(ii) and 686(1) (b)(iii).
- If the procedural irregularity was previously (before 1985) classified as an irregularity causing a loss of jurisdiction: s. 686(1) (b)(iv) provides that this is no longer fatal to the conviction, and an analysis of prejudice must be undertaken, in accordance with the principles set out in s. 686(1) (b)(iii).
- If the procedural error did not amount to, or originate in an error of law, which is rare, s. 686(1) (a)(iii) applies and the reviewing court must determine whether a miscarriage of justice occurred. If so, there are no remedial provisions in s. 686(1) (b) that can cure such a defect, and the appeal must be allowed and either an acquittal entered or a new trial ordered.
19 There is no suggestion in this case that the handing of the unedited transcripts to the jury was an irregularity that triggered a loss of jurisdiction over the person of the accused. Therefore, in my opinion s. 686(1) (b)(iv) has no application. Rather, what the appellant alleges is that the trial judge erred in law in refusing to declare a mistrial. We must analyse this argument under the more common route of determining whether that refusal was an error, and if so, whether it is curable under the proviso in s. 686(1) (b)(iii).
B. Sections 686(1) (a)(ii) and 686(1) (b)(iii)
20 I must say at the outset that I disagree, with the greatest respect, with the interpretation that my colleague LeBel J. gives to s. 686(1)(a)(ii) which would restrict the concept of error of law to an error on which the judgment was or could have been based so as to prejudice the accused. I am not aware of any authority which has restricted the concept of error of law in that fashion, and I am not persuaded that it is mandated by the textual reading of the section either in French or in English. In fact, in both languages, s. 686(1)(a) distinguishes between “verdict” and “judgment”. In s. 686(1)(a)(i), the Code provides that the appeal may been allowed if “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence” (emphasis added). In French, the word “verdict” is used in that subparagraph.
21 In contrast, in s. 686(1)(a)(ii) the Code provides that the appeal may be allowed if “the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law” (emphasis added). In French the word “jugement” is also used in that section.
22 In my opinion, even a textual interpretation supports the view that the judgment based on an error of law need not be linked to the final verdict but can be any decision, obviously having contributed to the ultimate verdict as they all do, that was an erroneous interpretation or application of the law.
23 I see no authority to support the notion that only errors of law containing an element of unfairness or prejudice would constitute errors of law in that context. The determination of whether the error of law was prejudicial to the accused, and if so to what extent, is an analysis traditionally reserved for, and rightly so, the remedial proviso in s. 686(1)(b)(iii), with the burden then appropriately placed on the Crown to satisfy the reviewing court that despite the error no substantial wrong or miscarriage of justice has occurred.
24 I will only refer briefly to some of the abundant jurisprudence under s. 686 of the Code in order to establish the parameters of the application both of paras. (a) and (b) of s. 686(1). Nothing needs to be said in this case about s. 686(1)(a)(i), which outlines the power of the court of appeal to allow an appeal on the basis that the verdict is unreasonable or cannot be supported by the evidence.
25 Apart from unreasonable verdict cases, it is fair to say that most matters that are brought as grounds of appeal against conviction in criminal cases are characterized as errors of law within the meaning of s. 686(1) (a)(ii). In some cases, when the court has concluded that the error alleged was not strictly speaking an error of law, but at most an error of mixed fact and law, it has characterized the issue as falling under s. 686(1) (a)(iii), that is, whether it was a miscarriage of justice. In such a case, further use of the proviso is obviously precluded and the appeal must be allowed. (See Fanjoy, supra.) As indicated earlier, I believe that the appeal in this case is entirely g