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.
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, per Hollinrake JA at para. 27
R v Noble (1996), 1996 CanLII 8344 (BC CA), 106 CCC (3d) 161, per McEachern JA (2:1) at para. 15
R v Dobis (2002), 2002 CanLII 32815 (ON CA), 163 CCC (3d) 259, per MacPherson JA, at para 19(Ont. C.A.)
R v Doucette (C.) (1993), 1993 CanLII 5390 (NB CA), 135 N.B.R. (2d) 151, per Hoyt JA, at para 5(C.A.)
R v Le (T.D.), 2011 MBCA 83 (CanLII), per Scott CJ, at paras 265 to 324