R. v. Thomas

R. v. Thomas
Collection
Supreme Court Judgments
Date
1998-12-17
Report
[1998] 3 SCR 535
Case number
25943
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 25943
Decision Content
R. v. Thomas, [1998] 3 S.C.R. 535
Alexander Francois Thomas Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Thomas
File No.: 25943.
1998: June 19; 1998: December 17.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the british columbia court of appeal
Criminal law -- Appeals -- Powers of court of appeal -- Accused convicted of second degree murder following jury trial -- Court of Appeal ordering new trial limited to issue of whether accused guilty of second degree murder or manslaughter -- Whether Court of Appeal had jurisdiction to make order for limited new trial -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(8) .
The accused was charged with second degree murder in relation to the shooting death of his common law partner. The incident occurred in the presence of an eyewitness who testified that the accused had killed his partner. The accused relied on the defence of intoxication in support of his position that he should be convicted of manslaughter. In his closing address to the jury, defence counsel conceded that his client caused the death of his partner by means of an unlawful act. The accused was convicted of second degree murder and, because of ineffective legal representation, filed a notice of appeal more than two years after his conviction. In the meantime, a number of trial exhibits were destroyed. The Court of Appeal granted the motion to extend time to file the notice of appeal, allowed the appeal from conviction and ordered a new trial pursuant to s. 686(2) of the Criminal Code . The court held that the trial judge had not adequately answered questions from the jury on the issue of intent and intoxication. The court also issued an ancillary order under s. 686(8) , confining the new trial to the issue of whether the accused was guilty of second degree murder or manslaughter.
Held (L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be allowed and a full new trial ordered.
Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.: Section 686(8) does not confer unlimited discretion on a court of appeal to issue ancillary orders. In addition to being constrained by what justice requires, a court of appeal should not issue an order that is at direct variance with the court’s underlying judgment. Any order made under s. 686(8) must also be consistent with s. 686 when read in its entirety. A court of appeal must thus assess whether it has jurisdiction to issue a particular ancillary order under s. 686(8) having regard to the basis on which the appeal is disposed of and its various powers under s. 686 generally.
The Court of Appeal had no jurisdiction to issue an order limiting the accused’s new trial to the issue of whether he is guilty of second degree murder or manslaughter. Orders limiting the scope of a new trial after granting an appeal from a jury verdict do not accord with the principles underlying the powers granted to courts of appeal under s. 686. While s. 686(4) applies only to appeals from acquittal, and this case deals with an appeal from a conviction, that subsection offers guidance as to the extent of an appeal court’s jurisdiction under s. 686(8) to order a limited new trial in a jury case. Under s. 686(4)(b)(i), a court of appeal could not issue the kind of order that was issued in this case. To do so would be tantamount to entering a partial conviction against the accused, which s. 686(4)(b)(ii) specifically prevents the appeal court from doing. Therefore, the words “new trial” in s. 686(4)(b)(i) mean a full new trial and the same words in s. 686(2) (b) should be given a like meaning, at least where there has been a jury trial.
Further, there is no power under s. 686(2) (b) allowing an appellate court to substitute a finding of guilt for any other offence. The Court of Appeal’s order in this case amounts to a finding of guilt for, at the least, manslaughter, constituting a substituted verdict for the jury’s conviction of second degree murder. Section 686(8) does not extend so far as to provide authority for such an order in the circumstances of a jury trial. As a matter of principle, appeal courts should not restrict the plenitude of the jury’s jurisdiction on a new trial by confining the scope of the issues normally within its province. In ordering a limited new trial, the Court of Appeal attempted to circumscribe the duties of the jury to deciding between manslaughter and second degree murder. The jury is precluded from entering a verdict of not guilty.
This case also illustrates that there may be dangers in restricting the ambit of new trials before a jury. Here, the questions posed by the jury to the trial judge indicate that the jury struggled with the issue of mens rea. Given the fundamental nature of those questions, were it not for the fact the accused’s counsel conceded to the jury that his client had killed his partner and asked for a finding of guilty of manslaughter, it is unlikely that the Court of Appeal would have had any confidence in the accused’s liability even for manslaughter. A limited new trial in this case would bind the accused to concessions made at the first trial which could limit his right to full answer and defence at the second trial and impinge on his presumption of innocence as protected by ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms . Furthermore, since the accused’s trial, there have been important developments in the law regarding the relationship between mens rea, intent and intoxication, including the enactment of s. 33.1 of the Criminal Code with respect to the defence of self-induced intoxication. It would be inappropriate in these circumstances to constrain the issues to be placed before the second jury.
Per L’Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): When a court of appeal orders a new trial pursuant to s. 686(2) of the Criminal Code, s. 686(8) allows the court to make “any order, in addition, that justice requires”. In this context, the remedial purpose of s. 686(8) is to ensure that the interests of justice are protected where ordering a new trial alone would not ensure that justice is done. This remedial purpose should be broadly construed in order to enhance the ability of appellate courts to respond in a measured way to the nature and extent of the error made at trial. A court of appeal’s jurisdiction under s. 686(8) to make all kinds of orders, including any ancillary order restricting the issues of a new trial, is limited only by what “justice requires”. What “justice requires” in a particular situation will vary and should be determined by the court of appeal on a case-by-case basis. The determination of what “justice requires” is informed by the remedial purpose of s. 686(8) and involves a consideration of both the individual interest of the accused in a fair trial and the collective interest in the proper administration of justice. In addition, the language of s. 686(8) is inconsistent with a determination that certain classes of orders are outside its scope. While the discretion granted under s. 686(8) to appellate courts is not unlimited, the proper approach for this Court is to review the exercise of that judicial discretion on a case-by-case basis and not to conclusively place entire classes of orders outside the jurisdiction of a court of appeal. Section 686(4) , which is not at issue in this case, cannot be used to limit the jurisdiction granted to appellate courts by s. 686(8) .
An order under s. 686(8) restricting a new trial to limited verdicts is an exceptional remedy that will be required by justice in “special circumstances”. Such an order may exceptionally be available where it is beyond reasonable doubt that the accused committed the guilty act and the only outstanding issue relates to the legal quality of that act. In this case, identity was not an issue at trial. Defence counsel admitted to the jury that the accused had caused the death of his partner by means of an unlawful act and that he was accordingly guilty of at least manslaughter. There was also overwhelming evidence tendered at trial against the accused. This led the Court of Appeal to conclude that there was no doubt that the accused killed his partner. In these special circumstances, the Court of Appeal’s order restricting the new trial to limited verdicts of manslaughter or second degree murder was appropriate and in accordance with the requirements of justice.
The order is not inconsistent with the presumption of innocence guaranteed by s. 11 (d) of the Charter . Here, the Crown has already discharged its burden with respect to the other elements of the crime and the jury has found beyond a reasonable doubt that the accused killed his partner. The trial judge’s error relates to his instructions on the issue of intent. Accordingly, the Court of Appeal only revived the elements relevant to the issue of intent. On those elements, the accused is entitled to a full presumption of innocence and the Crown must prove the intent required for second degree murder beyond a reasonable doubt. The same reasoning refutes the suggestion that a new trial on restricted issues violates the right to a jury trial guaranteed by s. 11 (f) of the Charter . Furthermore, the accused will suffer no prejudice arising from the order. The restricting order corrects the error made at trial, returns the accused to the same position he was in at the conclusion of the trial, and permits him to fully litigate the only live issue -- his level of intent -- that remains undecided by a properly and fully instructed jury. Lastly, the changes in the law regarding intent and intoxication since the accused’s trial are not relevant to this case because there is no suggestion that the accused was in a state resembling that of extreme intoxication akin to automatism.
The Court of Appeal did not err in hearing the motion to extend time at the same time as the appeal and in relying on the Crown’s affidavits.
Cases Cited
By Lamer C.J.
Distinguished: R. v. Pearson, [1998] 3 S.C.R. 620; referred to: R. v. Warsing, [1998] 3 S.C.R. 579; R. v. Wade (1994), 89 C.C.C. (3d) 39, rev’d on other grounds [1995] 2 S.C.R. 737; Elliott v. The Queen, [1978] 2 S.C.R. 393; R. v. Provo, [1989] 2 S.C.R. 3; Kienapple v. The Queen, [1975] 1 S.C.R. 729; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Meltzer, [1989] 1 S.C.R. 1764; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Stanley (1977), 36 C.C.C. (2d) 216; R. v. Cook (1979), 47 C.C.C. (2d) 186; R. v. B. (A.J.) (1994), 90 C.C.C. (3d) 210; R. v. Geauvreau, [1982] 1 S.C.R. 485; Reference re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135; R. v. Daviault, [1994] 3 S.C.R. 63.
By L’Heureux-Dubé J. (dissenting)
R. v. Pearson, [1998] 3 S.C.R. 620; R. v. Warsing, [1998] 3 S.C.R. 579; Reference re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135; R. v. Wade (1994), 89 C.C.C. (3d) 39, rev’d on other grounds [1995] 2 S.C.R. 737; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. Hinchey, [1996] 3 S.C.R. 1128; R. v. Bernardo (1997), 121 C.C.C. (3d) 123; R. v. Hinse, [1995] 4 S.C.R. 597; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Chek TV Ltd. (1986), 27 C.C.C. (3d) 380; R. v. O’Connor, [1995] 4 S.C.R. 411; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624; Elliott v. The Queen, [1978] 2 S.C.R. 393; R. v. Provo, [1989] 2 S.C.R. 3; R. v. Stanley (1977), 36 C.C.C. (2d) 216; R. v. Cook (1979), 47 C.C.C. (2d) 186; R. v. Ruptash (1982), 68 C.C.C. (2d) 182; R. v. Popoff (1960), 129 C.C.C. 250; R. v. Geauvreau, [1982] 1 S.C.R. 485; R. v. Maxwell (1990), 61 C.C.C. (3d) 289; R. v. Barnes (1990), 54 C.C.C. (3d) 368, aff’d [1991] 1 S.C.R. 449; R. v. Laverty (1990), 80 C.R. (3d) 231; R. v. Farinacci (1993), 86 C.C.C. (3d) 32; R. v. Noble, [1997] 1 S.C.R. 874; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Buxbaum (1989), 70 C.R. (3d) 20; R. v. Daviault, [1994] 3 S.C.R. 63.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d), (f).
Criminal Code, R.S.C., 1985, c. C-46, ss. 33.1 [ad. 1995, c. 32, s. 1], Part XXI, 674, 686(1) [am. c. 27 (1st Supp.), s. 145 ; 1991, c. 43, s. 9 (Sch., item 8)], (2), (3) [am. c. 27 (1st Supp.), s. 145 ], (4) [idem], (6) [rep. & sub. 1991, c. 43, s. 9 (Sch., item 8)], (7) [idem], (8).
Authors Cited
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Qué.: Yvon Blais, 1991.
Salhany, Roger E. Canadian Criminal Procedure, 6th ed. Aurora, Ont.: Canada Law Book, 1994 (loose-leaf updated May 1998, release No. 8).
Sopinka, John, and Mark A. Gelowitz. The Conduct of an Appeal. Toronto: Butterworths, 1993.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 85 B.C.A.C. 303, 138 W.A.C. 303, [1997] B.C.J. No. 341 (QL), allowing the accused’s appeal from his conviction for second degree murder and ordering a new trial confined to the issue of whether the verdict should be one of second degree murder or of manslaughter. Appeal allowed and full new trial ordered, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.
Sheldon Goldberg, for the appellant.
Gregory J. Fitch, for the respondent.
The judgment of Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
//The Chief Justice//
1 The Chief Justice -- This appeal, along with the two others being released with it, R. v. Warsing, [1998] 3 S.C.R. 579, and R. v. Pearson, [1998] 3 S.C.R. 620, deal with the powers of courts of appeal under s. 686 of the Criminal Code, R.S.C., 1985, c. C-46 . The particular issue that arises in this case is whether on an appeal from a conviction, s. 686(8) of the Criminal Code , which provides that a court of appeal may make “any [additional] order . . . that justice requires”, authorizes it to order a new trial limited to the issue of whether the accused is guilty of second degree murder or manslaughter. This question was raised in another case which recently came before this Court but that case was ultimately decided on other grounds: R. v. Wade, [1995] 2 S.C.R. 737. I wish to state at the outset that my decision in this case focuses on an appellate court’s powers with respect to appeals from jury verdicts. I leave for another day the question of whether the same principles would apply to appeals from decisions by a judge alone and whether, in that case, s. 686(8) might allow a court of appeal to limit the defences available to an accused on a second trial. In addition, for the reasons given by Justice Major and myself in Pearson, the issue of entrapment presents such a special set of circumstances for appeal courts that it justifies a different approach to s. 686(8) of the Criminal Code than that which I take in this case.
I. Factual Background
2 The appellant, Mr. Thomas, was charged with second degree murder in relation to the shooting death of his common law partner, Ms. Alexander. The incident occurred in the presence of a certain Ray Davis who testified that the accused killed Alexander. The only serious issue that arose at trial was whether Mr. Thomas intended to cause the victim’s death, thereby committing murder. The appellant relied on the defence of intoxication in support of his position that he should be convicted of the lesser included offence of manslaughter. In his closing address to the jury, counsel for the appellant conceded that his client caused the death of Ms. Alexander by means of an unlawful act. The accused was convicted of second degree murder on March 19, 1993.
3 A notice of appeal against conviction was filed on Thomas’ behalf on May 29, 1995, almost two years out of time. This delay in filing an appeal was apparently attributable to the questionable conduct of the lawyer retained by British Columbia Legal Services to advise the accused at that point in time. These regrettable circumstances resulted in a breakdown in communication between the accused, his lawyer and the Legal Services Society of British Columbia. In the meantime, in September 1993, the Crown gave permission for most trial exhibits to be destroyed. Taken as a whole, these exhibits confirmed the oral testimony of Davis, the only eyewitness to the shooting, and assisted the Crown in establishing that Thomas killed Alexander.
4 Given the fact that the accused had fallen prey to ineffective, if not negligent, legal representation, the Court of Appeal agreed to hear the appellant’s motion to extend time for bringing an appeal against his conviction. In fact, the Court of Appeal heard the motion to extend time and the appeal against conviction at the same time, on January 6, 1997. The next day, in oral reasons for judgment, the Court of Appeal granted the motion to extend time, allowed the appeal from conviction and ordered a new trial pursuant to s. 686(2) of the Criminal Code : (1997), 85 B.C.A.C. 303. Lambert J.A. held that a new trial was required in light of the failure of the trial judge to answer clearly the questions of the jury with respect to intent and intoxication. However, the Court of Appeal went on to issue an ancillary order under s. 686(8) , confining the new trial to the issue of whether the accused was guilty of second degree murder or manslaughter. It is the limited character of this new trial order that Mr. Thomas challenges in this appeal.
II. The Judgment of the British Columbia Court of Appeal
5 The Court of Appeal decided to hear the motion for extension of time and the appeal on the merits in a single hearing in order to save the court’s time. The Court of Appeal also proceeded in this manner because the Crown had initially argued that an extension of time should only be granted if the appeal were limited to the issue of whether the accused was guilty of second degree murder or manslaughter.
6 The Court of Appeal allowed the appellant’s motion. It held that the failure of the trial judge to answer properly questions from the jury on the relationship between intent and intoxication left the jury confused about the state of the law. In these circumstances, it was unsafe to uphold a conviction resting on the jury’s verdict, and a new trial had to be ordered. However, on the basis of the evidence tendered at trial, there was no doubt that the appellant had killed Ms. Alexander. Identity was not in issue at the trial. Furthermore, some relevant exhibits had been destroyed before the appellant filed his notice of appeal two years late. For these reasons, the Court of Appeal concluded that the new trial should be confined to the issue of whether the verdict should have been one of second degree murder or manslaughter. Lambert J.A. held that the court had jurisdiction to make such an order by virtue of s. 686(8) of the Criminal Code , as interpreted by the Ontario Court of Appeal in R. v. Wade (1994), 89 C.C.C. (3d) 39. The court also extended the time for the accused to bring an appeal on sentence.
III. Issues on Appeal
7 In this Court, Mr. Thomas relied on a number of grounds for appeal. In his submission, not only did the Court of Appeal lack jurisdiction to order a limited new trial, it should not have heard the appeal on the merits at the same time as the motion for extension of time. Furthermore, he argued that the court should not have considered the affidavit evidence tendered by the Crown to prove the destruction of exhibits. It is suggested that taking this affidavit into account on the appeal on the merits supplanted the production of viva voce evidence. The appellant also contended that the Court of Appeal erroneously relied on the destruction of evidence to limit the issues to be addressed on the new trial. In his submission, the rights of an accused should in no way be prejudiced by what he characterizes as the “negligence of [his] former Counsel”. Finally, the appellant argued that the “New Trial by Jury cannot be bound to a restricted decision according to the Criminal Code and Charter of Rights ” (appellant’s factum at para. 4). In particular, Mr. Thomas submitted that the ancillary order deprived him of his right to be tried by a jury.
8 In my opinion, the central issue raised by this appeal relates to the authority of the Court of Appeal to place limits on its order for a new trial and thereby confine the issue before the jury to the question of whether the accused is guilty of second degree murder or manslaughter. Given my conclusion on this question, it is not necessary to consider the appellant’s other arguments. In any event, it seems to me that Mr. Thomas misinterprets the reasons of the Court of Appeal. On my reading of Lambert J.A.’s judgment, the Court of Appeal would have ordered a limited new trial independent of the destruction of evidence, for the sole reason that identity was not at issue. Be that as it may, with respect, it is my opinion that the Court of Appeal lacked authority to restrict the scope of the accused’s new trial in the manner it did.
IV. The Legislation
9 The relevant portions of s. 686 of the Criminal Code state:
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;
(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears to the court to be required by the verdict and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or
(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial.
. . .
(4) Where an appeal is from an acquittal, the court of appeal may
(a) dismiss the appeal; or
(b) allow the appeal, set aside the verdict and
(i) order a new trial, or
(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.
. . .
(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.
V. The Court of Appeal’s Jurisdiction Under Section 686(8)
10 The case at bar raises the important question of the scope of the powers bestowed upon a court of appeal under s. 686(8) of the Criminal Code . It provides that a court of appeal issuing an order under s. 686(2) , (4) , (6) or (7) “may make any order, in addition, that justice requires”. Before us, the Crown argued that this subsection calls for as generous an interpretation as possible. In its view, the unambiguous language of subs. (8) should be given its plain, unfettered meaning: a court allowing or dismissing an appeal may make any additional order that justice requires. Indeed, it is a well-settled principle of statutory interpretation that “if the text is clear, look no further”: P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 241. In the Crown’s submission, the general wording of s. 686(8) , in contrast to the detailed language of other parts of s. 686 , confirms that subs. (8) must be read generously. In light of the “broad range of remedies” provided by s. 686 , the Crown argued that the remedial powers of a court sitting on appeal should allow it to tailor remedies proportionate to the harm found or said to have been occasioned as a result of errors committed in the trial court (Crown’s factum at paras. 40-41). Finally, the Crown invoked the generous interpretation given by courts to phrases like the “interest of justice” to argue that the British Columbia Court of Appeal had jurisdiction to issue the order in appeal. It also emphasized that an examination of the requirements of justice must consider factors relevant both to the accused and the overall administration of justice.
11 The Crown cited case law which does suggest that s. 686(8) should be interpreted purposively. In Elliott v. The Queen, [1978] 2 S.C.R. 393, this Court confirmed the power of a court of appeal to amend an indictment on a count of possession of a restricted drug for the purpose of trafficking. The original indictment charged the accused with trafficking in the specific drug methylenedioxyamphetamine (“MDA”). The evidence disclosed that the accused trafficked in a salt of MDA. The Court of Appeal held that the provisions of the Food and Drugs Act which listed among the restricted drugs MDA “or any salt thereof” were insufficient to import a salt of MDA into a charge that specified only MDA. The Court of Appeal allowed an amendment to the indictment to charge possession of a salt of MDA. A new trial was ordered on that charge. The issue before our Court was whether the Court of Appeal exceeded its powers in ordering the amendment of the original indictment to conform to the evidence. For the majority of the Court, Ritchie J. stated at p. 431:
In my view when Parliament authorized the Court of Appeal, in the exercise of its power, to order a new trial, to “make any order, in addition, which justice requires” it must be taken as having authorized that Court under those circumstances to make any additional order which the ends of justice require whether the order for a new trial is dependent upon the additional order or not. [Emphasis in original.]
12 A few years later, in R. v. Provo, [1989] 2 S.C.R. 3, Wilson J. held that a court of appeal could issue an order remitting a matter to trial for the purpose of entering a conviction on a sexual assault charge if the proceedings on this count had previously been stayed on the basis of the Kienapple principle (Kienapple v. The Queen, [1975] 1 S.C.R. 729). In that case, the conviction on a count of incest arising from the same delict had been overturned on appeal. In so doing, this Court stated at p. 19 that s. 686(8) grants “a broad ancillary jurisdiction” which should be interpreted “in a generous manner consistent with its broad remedial purposes”. Wilson J. also held at p. 20 for a unanimous bench:
There is, in my respectful view, no reasonable alternative to a broad reading of the Court of Appeal’s ancillary jurisdiction under s. 613(8) [now s. 686(8) ], given its broad wording and remedial purpose. The section gives the Court of Appeal a broad supplementary power to make any order that justice requires when it exercises its appellate powers under the enumerated subsections of s. 613. [Emphasis added.]
13 These two cases support the Crown’s position up to a certain point. They make clear that s. 686(8) does not prevent the issuance of orders that serve the interests of the Crown in the administration of justice. However, they also underscore a key feature of orders issued under s. 686(8) , namely, that they are ancillary in nature.
14 In criminal matters, the jurisdiction of a court of appeal is purely statutory: s. 674 of the Criminal Code . See also Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, at p. 69, and R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773. As far as ordinary criminal appeals are concerned, the jurisdiction and powers of a court of appeal are defined exhaustively in Part XXI of the Criminal Code . It is in light of this legislative scheme that the specific power awarded by s. 686(8) must be understood. As Justice R. E. Salhany notes (in Canadian Criminal Procedure (6th ed. 1994 (loose-leaf)), at p. 9-5): “[i]t is often forgotten that the right of an accused to appeal his conviction must be examined in light of the power of the court of appeal to deal with that conviction”. Other commentators confirm this view (J. Sopinka and M. A. Gelowitz, The Conduct of an Appeal (1993), at p. 111):
The statutory nature of appeals in criminal matters reflects itself not only in the circumscription of appellate jurisdiction, but in the scope of powers available to an appellate court in an appeal properly brought before it.
Wilson J. adopted this approach in Provo, supra, at p. 20, when she noted that Parliament granted “broad supplementary power to make any order that justice requires” to a court of appeal “when it exercises its appellate powers under the enumerated subsections of s. 613” (now s. 686 ). (Emphasis added.)
15 This Court adopted a similar contextual interpretation of s. 686(8) in R. v. Hinse, [1995] 4 S.C.R. 597. In that case, the Court was asked to reconsider an order refusing leave to appeal from an order of the Quebec Court of Appeal quashing a conviction and staying proceedings for abuse of process. The Court confirmed that s. 686(8) granted authority to a court of appeal to stay criminal proceedings that violate the community’s sense of fairness. The majority also commented in more general terms about the scope of the power granted by s. 686(8) . It held that a s. 686(8) order represents a “fundamentally distinct judicial order” from an order for a new trial, but that this former order is still “ancillary to the underlying judgment rendered by the court” (emphasis in original):
But the mere fact that a court of appeal may exercise its power under s. 686(8) of the Criminal Code independently of a prior order under s. 686(2) (b) does not, in my view, change the fundamentally ancillary and supplemental character of such an order. . . . The court’s power under s. 686(8) , however, is not so inextricably wound up with the fate of the appeal. Indeed, the court’s power under s. 686(8) is often exercised with regard to considerations that are well removed from the issue of the accused’s innocence or culpability.
(Hinse, supra, at paras. 24, 28 and 31.)
16 Turning to the question of whether this Court has jurisdiction to hear appeals directed at s. 686(8) orders, I concluded for the majority that there were sound judicial policy reasons for allowing such orders to be appealed. I also commented, at para. 33, on the range of remedies available under s. 686(8) :
But a court of appeal’s residual order power under s. 686(8) is not subject to the same rigorous textual constraints as the court’s power under s. 686(2) (b). Under its remedial power, a court of appeal may impose “any order” which, in its discretion, “justice requires”. As such, there is a risk that a court of appeal may enter an order under s. 686(8) which is at direct variance with its underlying judgment. A court of appeal may allow an accused’s appeal and enter an acquittal under s. 686(2) (a), but then, hypothetically, impose an order for costs against the accused for no apparent reason notwithstanding the language of s. 683(3). Or a court of appeal could conceivably set aside an accused’s conviction, and then impose a stay of proceedings for reasons completely unrelated to any alleged abuse of process, thus transcending the limits upon a court of appeal’s discretion which this Court articulated in Power, supra, at p. 620. In both such circumstances, the relevant discretionary order entered under s. 686(8) would be of questionable legality. More importantly, the discretionary order [could] be fundamentally incongruous with the court's disposition of the appeal, arguably undermining the accused's success on the merits of her appeal. [Emphasis added.]
After referring to the order issued by the Ontario Court of Appeal in Wade, I added, at para. 34:
Assuming without deciding the problematic question of whether a court of appeal has the power under s. 686(8) to direct a new trial on certain limited issues, the policy risk presented by the unsupervised exercise of this power is readily apparent. A court of appeal could effectively undermine an accused’s success on appeal by ordering a new trial only on certain limited issues which are completely unrelated to the accused’s underlying innocence or culpability. The accused’s success in procuring a new trial under s. 686(2) (b) would be eviscerated by the court’s “additional order” under s. 686(8) . [Emphasis added.]
17 The majority reasons in Hinse suggest that s. 686(8) does not confer unlimited discretion on a court of appeal. In addition to being constrained by what justice requires, a court of appeal should not issue an order that is at direct variance with the court’s underlying judgment. In my view, a court of appeal must assess whether it has jurisdiction to issue a particular ancillary order under s. 686(8) having regard to the basis on which the appeal is disposed of and its various powers under s. 686 generally.
18 Before turning to the order made by the Court of Appeal in this case, I note that the interpretation of s. 686(8) I propose generally accords with the many uses to which this provision has been put (see for example: R. v. Stanley (1977), 36 C.C.C. (2d) 216 (B.C.C.A.); R. v. Cook (1979), 47 C.C.C. (2d) 186 (Ont. C.A.); R. v. B. (A.J.) (1994), 90 C.C.C. (3d) 210 (Nfld. C.A.); R. v. Geauvreau, [1982] 1 S.C.R. 485; Kienapple, supra; and Reference re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135 (Ont. C.A.)). However, given the narrow basis on which I would dispose of this case, I will say nothing about the propriety of those other uses of s. 686(8) . Its application in relation to entrapment is addressed in Pearson, supra.
19 In this case, the Court of Appeal determined that the trial judge did not adequately answer questions from the jury on the issue of intent and intoxication. While the court does not specifically enumerate the paragraph of s. 686(1) which is its basis for allowing the appeal, it can be inferred that the Court of Appeal found there was a miscarriage of justice in that the jury’s confusion was left unresolved. In his reasons for judgment, Lambert J.A. specifically found that it was “unsafe” to uphold the conviction (p. 306). In my view therefore, the basic or core judgment on appeal was that the jury’s verdict was flawed and could not be affirmed. In such circumstances, the result must be a new trial (s. 686(2) ). The question is whether the Court of Appeal had jurisdiction to make an order for a restricted new trial. I would say at the outset that I do not dispute the Crown’s position that s. 686(8) provides courts of appeal with the power to make a considerable range of ancillary orders. (See, e.g., Pearson, supra.) Nor would I disagree with its suggestion that courts of appeal must have considerable discretion in fashioning appropriate ancillary orders. It is my view, however, that there are limits on that power and discretion and, in this case, those limits were exceeded.
VI. The Operation of Section 686 with Respect to Jury Trials
20 In addition to the above-noted limitations on a court of appeal’s powers under s. 686(8) , I am of the view that any order made under it must be consistent with s. 686 when read in its entirety. That section provides the jurisdiction of courts of appeal when disposing of appeals from conviction or acquittal, including the power to order a new trial. In making such an order the court must obviously operate within the rules of its jurisdiction and respect the principles underlying them.
21 A very important limitation on the power of a court of appeal is contained in s. 686(4). In particular, the powers accorded to a court of appeal when allowing an appeal from a jury verdict of acquittal are circumscribed by the language of subparas. (i) and (ii) of s. 686(4)(b) which state:
(4) Where an appeal is from an acquittal, the court of appeal may
. . .
(b) allow the appeal, set aside the verdict and
(i) order a new trial, or
(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law. [Emphasis added.]
The essence of this provision is that where an acquittal is pronounced by a jury, a court of appeal is powerless to substitute any finding of guilt, even for a lesser offence. Should the court wish to set aside the verdict, its only option is to order a new trial pursuant to s. 686(4)(b)(i).
22 While this provision applies only to appeals from acquittal and we are dealing here with an appeal from a conviction, I believe it offers guidance as to the extent of an appeal court’s jurisdiction under s. 686(8) to order a limited new trial in a jury case. It is clear to me that in ordering a new trial under s. 686(4)(b)(i) a court of appeal could not issue the kind of order that was issued in this case under the purported authority of s. 686(8) . To do so would be tantamount to entering a partial conviction against the accused which s. 686(4)(b)(ii) specifically prevents the appeal court from doing. Accordingly, a “new trial” for purposes of s. 686(4)(b)(i) means a full new trial, not a limited one in the nature of that ordered by the Court of Appeal in this case. It further follows that the words “new trial” in s. 686(2) (b) should be given a like meaning, at least in the circumstances where there has been a jury trial.
23 Section 686(2) provides that where an appeal court determines a conviction is unreasonable, or that there was an error of law or a miscarriage of justice, it may substitute an acquittal or order a new trial. There is no power to substitute a finding of guilt for any other offence. The court’s order in this case amounts to a finding of guilt for, at the le