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

Last Updated: October 23 2014
Article by Lisa Jorgensen

Most Read Contributor in Canada, September 2018

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.

Background

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.

Decision

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?

Procedure

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.

Significance

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

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