|This page was last substantively updated or reviewed June 2021. (Rev. # 85825)|
Section 686(1)(b) entitles the court to dismiss an accused's appeal in certain circumstances. An appeal can be dismissed where:
- there is no error in the proceedings (686(1)(b)(ii))
- there was an improper conviction on only certain counts such that the appeal against the remaining counts can be dismissed (686(1)(b)(i))
- there were errors of law but it did not result in a "substantial wrong or miscarriage of justice" (686(1)(b)(iii) - sometimes referred to as the "curative proviso")
- there were procedural irregularities but the accused suffered no prejudices (686(1)(b)(iv))
Conviction on Other Grounds (686(1)(b)(i) and (3))
Section 686(1)(b)(i) permits the appellate court to dismiss an appeal despite there being an error in the trial judge ruling, where "the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment".
- Court May Substitute Incorrect Verdict for Correct One and Re-Assess Sentence
Absence of Error Under s. 686(1)(a) of the Code (686(1)(b)(ii))
Section 686(1)(b)(ii) permits the judge to dismiss the appeal "the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a)," which consists of errors for unreasonable verdict, error on a question of law, or where there is a miscarriage of justice.
No Substantial Wrong or Miscarriage of Justice (686(1)(b)(iii))
Section 686(1)(b)(iii), known as the "curative proviso", permits the appeal court to dismiss an appeal despite a finding of an error of law in favour of the appellant where there has been "no substantial wrong or miscarriage of justice". The proviso may be applied where "the outcome of the trial, irrespective of the error, would necessarily have been the same."
There are two categories of error that will be subject to the proviso:
- where there is "an error so harmless or minor that it could not have had any impact on the verdict."; or
- where there are "serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain."
- When Is It Raised
The court cannot, on its own motion, rely on the curative proviso.
There is no obligation that the Crown must "specifically request" the court to rely on the proviso to uphold the conviction. The court in "rare cases" may not be constrained by the Crown's failure to raise the proviso.
- Burden and Standard
Either of these criteria must be established on a balance of probabilities.
The burden is on the Crown to prove the applicability of the curative proviso.
In establishing that the case was "overwhelming", the onus is upon the Crown to meet this "high standard" which has been described as "substantially higher" than beyond a reasonable doubt. This standard reflects the fact an appellate court cannot easily consider the effect on the outcome. In order to deprive an accused of a proper trial, the deprivation must be minimal such that the invariable result would be another conviction.
- Court Cannot Raise Issue
The Crown must specifically raise the curative proviso on their own. It is an error of law for the court to otherwise rely on it.
- R v O'Brien, 2011 SCC 29 (CanLII),  2 SCR 485, per Abella J, at paras 33, 34
R v Van, 2009 SCC 22 (CanLII),  1 SCR 716, per LeBel J, at paras 34 to 36
R v Khan, 2001 SCC 86 (CanLII),  3 SCR 823, per Arbour J
R v Trochym, 2007 SCC 6 (CanLII),  1 SCR 239, per Deschamps J
R v Sekhon, 2014 SCC 15 (CanLII),  1 SCR 272, per Moldaver J, at para 53
- R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, at paras 138 to 142
- Herritt, ibid., at paras 138 to 142
R v Settle, 2021 ABCA 221 (CanLII), per Watson JA, at para 11
R v McMaster, 1996 CanLII 234 (SCC),  1 SCR 740, per CJ, at para 37 ("In conclusion, I am of the view that the trial judge’s misdirection on the law of intoxication constituted an error of law. The respondent has not raised s. 686(1)(b)(iii) of the Code in argument. ... “[t]he Crown has the burden of showing that this provision is applicable …. This Court cannot apply it proprio motu.”")
- Settle, supra at para 11
- O'Brien, supra, at para 34
Van, supra, at para 34
- O'Brien, supra, at para 33
- O'Brien, supra, at para 48
R v S(PL), 1991 CanLII 103 (SCC), 64 CCC (3d) 193, per Sopinka J, at p. 916
- R v Jolivet, 2000 SCC 29 (CanLII),  1 SCR 751, per Binnie J, at para 46
R v Bevan, 1993 CanLII 101 (SCC),  2 SCR 599, per Major J, at pp. 616-618
R v Merz, 1999 CanLII 1647 (ON CA), 140 CCC (3d) 259, per Doherty JA, at pp. 178-180
R v Bisson, 2010 ONCA 556 (CanLII), 258 CCC (3d) 338, per Epstein JA
Lack of Prejudice (686(1)(b)(iv))
Under s. 686(1)(b)(iv), the Court may dismiss a defence appeal despite irregularities at trial. The section states:
The purpose of s. 686(1)(b)(iv) is to "expand the remedial powers of the court to engage with jurisdictional errors"(cleaned up).
In this context, "prejudice" refers to the prejudice suffered upon the accused's ability to defend himself, to receive a fair trial, and to the appearance of the administration of justice.
Dismissal is particularly appropriate where there is no appearance of unfairness and counsel did not object.
Private interactions between the trial judge and prospective jurors may lack prejudice in where there is no appearance of unfairness.
The phrase "trial court had jurisdiction over the class of offence" refers to the three classes of offences: s. 469 offences, non-469 electable offences, and summary conviction offences.
- Errors in Jury Selection
The curative proviso can be applied to jury selection errors where the appellate court is of the opinion that the accused "suffer no prejudice". The proviso does not require a properly constituted jury panel.