Appeal on Miscarriage of Justice
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
- (iii) on any ground there was a miscarriage of justice;
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).
A miscarriage of justice may arise in the following circumstances:
- a misapprehension of "significant evidence"
- Sufficiency of Reasons
- improper questioning during cross-examination
- invalid guilty plea
- Ineffective or Incompetent Counsel
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'" The considerations will vary on a case-by-case basis.
R v Spier, 2012 ONCA 798 (CanLII) at paras 32 and 85
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.)"
Not all instances where portions of the trial transcript will warrant a new trial. 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.
R v Hayes,  1 SCR 44, 1989 CanLII 108 (SCC) per L'Heureux-Dube J
see also R v S.R. (1993), 1993 CanLII 930 (BC CA), 26 B.C.A.C. 149 at para. 27
R v Noble (1996), 1996 CanLII 8344 (BC CA), 106 C.C.C. (3d) 161 at para. 15 (B.C.C.A.)
R v Dobis (2002), 2002 CanLII 32815 (ON CA), 163 C.C.C. (3d) 259 at para. 19 (Ont. C.A.)
R v Doucette (C.) (1993), 1993 CanLII 5390 (NB CA), 135 N.B.R. (2d) 151 at para. 5 (C.A.)
R v Le (T.D.), 2011 MBCA 83 (CanLII) at paras 265 to 324 per Scott CJ