Canada: What’s "New" And What To Do About It? Supreme Court Sets High Bar To Appellate Courts Exercising Discretion To Raise New Issues

In R. v. Mian, the Supreme Court provided extensive comment on when an "appellate court can disrupt the adversarial system and raise a ground of appeal on its own" initiative.

The Court established a new test for the exercise of appellate courts' discretion to raise a new issue on appeal. Appellate court judges will now ask themselves three questions when deciding whether to raise a new issue: 1) is the issue actually "new"?; 2) would failing to raise the issue "risk an injustice"?; and 3) can the new issue be raised in a way that will be fair to both parties?

While the Court has previously addressed the issue of when counsel may raise a new issue on appeal, this decision marks the first time the Court has clearly delineated the scope of an appellate court's discretion to do so.


Police were investigating a number of gang-related homicides and attempted-homicides. In the course of their investigation, a wiretap authorization was obtained. Through the wiretap and surveillance of one of the homicide suspects, police became aware of a drug transaction between the target and an unknown man, who turned out to be Mian. Constables not involved in the homicide investigation were instructed to make a routine stop of Mian's vehicle.

During the routine stop, one of the constables reported by radio that Mian was reaching under the passenger seat and doing something with his hands. The homicide officer, following in a separate car, authorized the constables to arrest Mian and search his car. A substantial quantity of drugs and cash was retrieved. Mian was not told he was under arrest for the possession of cocaine for the purpose of trafficking, or advised of his Charter rights to retain and instruct counsel, until twenty-two minutes after he was pulled over.

At trial, Mian applied to exclude all evidence on the basis that he has been arbitrarily detained, subjected to an unreasonable search and seizure, denied his right to know the reason for his detention, and denied his right to counsel contrary to ss. 8, 9, 10(a) and 10(b) of the Charter. On the voir dire to exclude the evidence, the constable who pulled over Mian testified that he had reported his observation of Mian reaching to the passenger side, but had not made any comment about concerns regarding officer safety. The homicide officer testified that the arrest was justified by concerns for officer safety.

Judicial History

On the voir dire, the trial judge rejected the homicide officer's evidence that there was a valid concern for officer safety justifying the arrest. He further concluded that the homicide officer "intentionally mis[led] the Court with a view to justifying his instructions" to arrest Mian. However, he found no breach of Mian ss. 8 and 9 Charter rights as there had been other valid grounds for arrest.

The trial judge found that Mian's ss. 10(a) and (b) rights were breached as there were no exceptional circumstances justifying the twenty-two minute delay. After weighing the Grant factors, the trial judge excluded the evidence. Mian was acquitted.

The Crown appealed Mian's acquittal.

On appeal, after parties had filed their written submissions, the Court of Appeal provided counsel with a list of cases and requested submissions on two additional issues during oral argument: 1) what is a question of law on an appeal from acquittal, and 2) whether Mian had conducted an improper cross-examination of one of the officers by asking him to comment on the veracity of another officer's testimony, and if so, what the consequences should be.

Counsel for both parties made submissions on the Court's new issues in oral argument and provided further written submissions after the hearing.

The Court of Appeal found that the cross-examination was improper, and that the trial judge materially relied upon the improper cross-examination in reaching his verdict. On that basis, the Court of Appeal allowed the appeal and ordered a new trial.

Mian appealed to the Supreme Court of Canada arguing that the Court of Appeal erred in raising a new ground of appeal and in ordering a new trial on the basis of the improper cross-examination issue.


What is a "new issue"?

An issue will only be considered "new" when the issue "was not raised by the parties, cannot reasonably be said to stem from the issues as framed by the parties, and therefore would require that the parties be given notice of the issue in order to make informed submissions".

Justice Rothstein, writing for the court, clarified that not all questions asked by an appellate court constitute new issues. The following types of questions are not considered "new issues":

  • Questions posed during the oral hearing to understand the context, statutory background or larger implications of an issue raised on appeal
  • Questions that are rooted in, or are components of, an existing issue on appeal
  • Questions that form the "backdrop of appellate litigation", such as those regarding jurisdiction, the standard of review, or available remedies

When a court seeks to gain a more complete understanding of the issues on appeal by asking such questions, the only limitation to its broad jurisdiction is that questions may not be "raised in a manner which suggests bias or partiality on the part of the appeal court".

What factors must be considered in determining whether a new issue may be raised?

Justice Rothstein identified the two "potentially competing considerations" that animate the issue of when an appellate court may raise a new issue: 1) the adversarial system, a "fundamental tenet of our legal system", with its reliance on party presentation and the courts as neutral arbiters, and 2) the role of the courts to ensure that justice is done.

When a panel of judges intervenes in a case and departs from the submissions and strategic choices of the parties, there is a risk that the intervention could create an apprehension of bias and impugn the impartiality of the court. On the other hand, courts are truth-seeking bodies that must, at times, intervene in the adversarial debate to ensure that justice is done.

To strike a balance between these two competing principles, appellate courts should have the discretion to raise a new issue, but such discretion must be rarely exercised.

The central question a panel of appellate justices must ask themselves when determining whether to raise a new issue is whether the failure to do so would "risk an injustice". Justice Rothstein commented that the test must be "sufficiently flexible while also providing for an appropriate level of restraint".

Determining whether a failure to raise an issue "would risk an injustice" requires the appellate court to perform a preliminary assessment of issue. This assessment is not a "full-fledged review", as it would be inappropriate for the court to conduct an in-depth review of the merits of an issue without input from the parties. The court must satisfy itself that there is "good reason to believe" that a failure to raise a new issue "would risk an injustice". Justice Rothstein observed that it is likely that many issues identified by appellate courts would fail to meet the "risk an injustice" standard.

Justice Rothstein identified several additional factors that may guide appellate courts when determining whether it would be fair and appropriate to raise a new issue:

  • Is there a sufficient record on which to raise the issue?
  • Would raising the issue result in prejudice to either party?
  • Would raising the issue suggest bias or partiality on the part of the court?
  • Does the court have jurisdiction to raise the issue?


When it comes to how courts may raise new issues on appeal, the Supreme Court has established a flexible case-by-case procedure. The underlying requirement is that the procedure be fair.

Justice Rothstein acknowledged that "no single model" would appropriately suit all circumstances and contexts.

Timing and Content of Notice

It is essential that counsel for both parties be given notice of the new issue and provided with an opportunity to respond. While it is desirable that notice been given as soon as possible, the nature and timing of the notice will vary depending on the circumstances of each case.

Notification of the new issue may be given prior to the oral hearing. Depending on the timing of the notice and the nature of the issue, it may or may not be necessary to grant an adjournment of the hearing, or extend timelines in which parties may make supplementary submissions.

Where the new issue is raised for the first time at the oral hearing, it may be necessary to grant an adjournment to ensure a full and fair hearing.

The notice to the parties should contain enough information to allow the parties to respond, but not contain too much detail or indicate that the court has taken a position on the issue.

Nature of Submissions

The parties must be given an opportunity to respond to the issue raised by the court.

How the court chooses to receive submissions may vary on a case-by-case basis. Depending on the timing of the notice and the nature of the issue, written submissions, oral submissions, or both may be preferable. Justice Rothstein commented that if a party requests the opportunity to make written submissions prior to the hearing, there should be a presumption in favour of granting the request.

While it is preferable that the appellant be required to file submissions before the respondent, a reversal of that order does not necessarily result in prejudice.

The Same Panel May Hear the Appeal

Justice Rothstein held that there is no requirement for a panel that has raised a new issue to recuse itself from hearing the appeal on its merits.

The Court of Appeal erred in raising a new issue

In this case, Justice Rothstein held that the Court of Appeal erred in raising the new issue of the improper cross-examination, and in allowing the appeal on that basis. He found that the impugned cross-examination did not "risk an injustice" as the trial judge's error did not have a material bearing on the outcome.

Justice Rothstein went on to uphold the trial judge's finding of a breach of Mian's ss. 10(a) and (b) rights and his decision to exclude the evidence pursuant to s. 24(2).

Accordingly, the appeal was allowed and the trial judge's verdict acquitting Mian was restored.


The Supreme Court's new test, while flexible, sets a high bar for appellate court judges to meet if they wish to raise new issues on appeal. This decision confirms the strength of the Court's belief that the adversarial process, and the neutrality of judicial decision-makers, is the heart of our legal system. Only where failing to raise an issue would "risk an injustice" may an appellate court wade into the fray and propose a new issue on its own motion.

Case Information

R. v. Mian, 2014 SCC 54

Docket: C35132

Date of Decision: September 12, 2014

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.