Appeal on Miscarriage of Justice

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95277)

General Principles

Under s.686(1)(a)(iii), the defence may appeal a conviction based on 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
[omitted (i) and (ii)]
(iii) on any ground there was a miscarriage of justice;
[omitted (b), (c), (d) and (e)]

[omitted (2), (3), (4), (5), (5.01), (5.1), (5.2), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 686; R.S., 1985, c. 27 (1st Supp.), ss. 145, 203; 1991, c. 43, s. 9; 1997, c. 18, s. 98; 1999, c. 3, s. 52, c. 5, s. 26; 2015, c. 3, s. 54(F).

– CCC (CanLII), (DOJ)

Note up: 686(1)

A miscarriage of justice may arise in the following circumstances:

  1. ↑ R v Morrissey, 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193, per Doherty JA
  2. ↑ R v MFT, 2012 BCCA 428 (CanLII), per Neilson JA, at paras 38 to 46 - improper cross-examination found but no prejudice arose so appeal failed
  3. ↑ R v Wiebe, 2012 BCCA 519 (CanLII), 331 BCAC 208, per Ryan JA, at para 22

Trial Irregularities

Trial irregularities may amount to an appealable miscarriage of justice where "the cumulative impact of the irregularities outlined above so disrupted the balance between the rights of the accused and those of the prosecution such that 'a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so'"[1] The considerations will vary on a case-by-case basis.[2]

Unforced Errors

When assessing errors of a trial. The reviewing court must take into account the "autonomy of an accused," which "includes suffering the consequences of his own mistakes."[3]

  1. ↑ R v Spier, 2012 ONCA 798 (CanLII), 293 CCC (3d) 17, per Rouleau JA, at paras 32 and 85
  2. ↑ Spier, ibid., at para 32 ("The gravity of the irregularities and the impact of these on trial fairness and the appearance of fairness are to be evaluated on a case-by-case basis.)"
  3. ↑ R v Sauverwald, 2020 ABCA 388 (CanLII), AJ No 1170, per curiam, at para 139

Missing Transcript

Not all instances where portions of the trial transcript will warrant a new trial.[1] Generally, it must be established that there was "a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal" before a new trial will be ordered.[2]

  1. ↑ R v Hayes, 1989 CanLII 108 (SCC), [1989] 1 SCR 44, per L'Heureux-Dube J
  2. ↑ Hayes, ibid.
    see also R v SR, 1993 CanLII 930 (BC CA), 26 B.C.A.C. 149, per Hollinrake JA, at para 27
    R v Noble, 1996 CanLII 8344 (BC CA), 106 CCC (3d) 161, per McEachern JA (2:1), at para 15
    R v Dobis, 2002 CanLII 32815 (ON CA), 163 CCC (3d) 259, per MacPherson JA, at para 19(Ont. C.A.)
    R v Doucette (C.), 1993 CanLII 5390 (NB CA), , 135 NBR (2d) 151, per Hoyt JA, at para 5(CA)
    R v Le (T.D.), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Scott CJ, at paras 265 to 324

Sufficiency of Reasons

See also: Sufficiency of Reasons

Issues of sufficiency of reasons can arise from an appeal under 686(1)(a) based on error of law, miscarriage of justice, or unreasonable verdict.

Retrieved from "https://criminalnotebook.ca/index.php?title=Appeal_on_Miscarriage_of_Justice&oldid=95277"