R. v. Mian: A “new issue”
The Supreme Court recently provided new guidance to
appellate courts on how to use their discretionary powers to “do justice”,
while maintaining impartiality. In a
unanimous decision, R. v.
Mian, 2014 SCC 54 [“Mian”], the
Supreme Court pronounced a new test on when appellate courts can raise a “new
issue”: where there is good reason to
believe that failing to do so would risk an injustice.
Mian was acquitted of all criminal charges, after the trial
judge found that his Charter rights were breached. The Crown appealed. The Alberta Court of Queen’s Bench (“the Court
of Appeal”) allowed the appeal, after raising a new issue: whether the counsel
for the defendant had improperly cross-examined a witness. The Court of Appeal found that he had, and
that the trial judge erred in law by relying on the impermissible
cross-examination. A new trial was
ordered.
The court’s ability to intervene, by raising new issues on
appeal or asking questions of parties directly, is important in allowing the
bench to rectify injustices, and carry out its truth-finding role. Before Mian, the power to intervene was
limited primarily by the court’s role as an impartial arbiter. If by intervening, the appellate court could
be seen as advocating for one side, the use of its discretion to do justice
could be rendered meaningless by its apprehension of bias.
Though the appellate court’s impartiality was not an issue in
Mian, the Supreme Court took it into
great consideration. Specifically, it took
issue with the ambitious use of this discretion, which may call into question
the court’s role as an unbiased arbiter.
As stated by Justice Rothstein, at para 42, “[C]ourts cannot be seen to
go in search of a wrong to right” (R. v.
Mian, supra, para 42). To protect
against such an outcome, the Supreme Court tied the discretion of raising new
issues directly to the Court’s function to prevent an injustice, and only for
that purpose. In doing so, it reiterated
the role of appellate courts as independent and impartial decision-makers, as
well as their deferential role on appeals.
In crafting the threshold, the Supreme Court attempted to
reconcile between two competing considerations: preserving the adversarial
system for the fact-finding mission, and the judiciary’s role to uphold
justice.
The adversarial system in place allows the parties to present
their versions of the truth to an unbiased third-party for a rendering. Central to the proper functioning of this
adversarial system is the appearance of impartiality of the
decision-maker. While an appellate court
may intervene to better understand the truth, the manner in which it does this
could also undermine the court’s unique role in the resolution process.
Notwithstanding this, as highlighted by the Supreme Court,
it is equally an appellate court’s function to review errors of laws, seek the
truth and correct any injustices. To do
so, the court must have certain procedural powers to take on an active role
during proceedings to satisfy itself of the truth, where the parties’ have been
unable to do so.
To strike a balance between these two roles, the Supreme
Court limited the appellate courts’ discretion to raise new issues on appeal
only in order to correct an injustice.
It cited examples of situations where a self-represented litigant may
need assistance, or where intervention would be required to correct a seemingly
unreasonable criminal sentence.
The Supreme Court recognized that a preliminary assessment
would be needed to determine whether the new issue meets the injustice
threshold. Where there are no early
indications of an injustice by failing to raise a new issue however, a failure
to carry out a preliminary assessment would not be an error of law.
Other considerations include whether the court has
jurisdiction to consider the issue, whether there is sufficient evidentiary
record to determine the issue, and whether doing so would cause procedural
prejudice to either party. There are
also procedural safeguards put in place, many of which already exist, such as
providing notice to parties of the new issue.
