Remedies on Conviction Appeal

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General Principles

Where an error has been found by the appellate court, the court must address the question of what remedy, if any, should be applied.

Appeals against conviction or verdict under s. 686 that are successful may be subject to a remedies including a stay of proceedings, a new verdict, or a new trial. Alternatively, the appellate court has limited ability to dismiss the appeal despite the existence of an error. The court may dismiss certain claims in situations such as where the error would not have changed the verdict or where there was no miscarriage of justice or there was a lack of prejudice.

Dismissal Of Defence Appeal Despite Error

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".

Powers
s. 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
...

(b) may dismiss the appeal where
(i) 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,

...
Substituting verdict
(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and

(a) affirm the sentence passed by the trial court; or
(b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

...
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.


CCC

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.

Curative Proviso (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."[1]

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 ...

(b) may dismiss the appeal where

...

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

...
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.


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There are two categories of error that will be subject to the proviso:[2]

  1. where there is "an error so harmless or minor that it could not have had any impact on the verdict."; or
  2. 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."

Burden and Standard
Either of these criteria must be established on a balance of probabilities.[3]

The burden is on the Crown to prove the the applicability of the curative proviso.[4]

Evidence
In establishing that the case was "overwhelming", the onus is upon the Crown to meet this "high standard"[5] 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.[6] In order to deprive an accused of a proper trial, the deprivation must be minimal such that the invariable result would be another conviction.[7]

The evidence must be "powerful" with "no realistic possibility" that a new trial would be different.[8] There should be "no reasonable possibility that the verdict would have been different."[9]

  1. R. v.O’Brien, 2011 SCC 29 (CanLII) at para 33, 34
  2. R v Van, 2009 SCC 22 (CanLII), [2009] 1 SCR 716 at para 34-36
    R v Khan, 2001 SCC 86 (CanLII)
    R v Trochym, 2007 SCC 6 (CanLII)
  3. O'Brien at para 34
  4. R v Van at para 34
  5. O'Brien at para 33
  6. O'Brien at para 48
  7. R v S.(P.L.), 1991 CanLII 103 (SCC) at p. 916
  8. R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, at para 46
  9. R v Bevan, 1993 CanLII 101 (SCC), [1993] 2 SCR 599 at p. 616-618
    R v Merz, 1999 CanLII 1647 (ON CA) at p. 178-180

Lack of Prejudice (686(1)(b)(iv))

Under s. 686(1)(b)(iv), the Court may dismiss a defence appeal despite irregularities at trial where the "court of appeal is of the opinion that the appellant suffered no prejudice thereby".

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.[1]

Private interactions between the trial judge and prospective jurors may lack prejudice in where there is no appearance of unfairness.[2]

  1. R v Kakegamic 2010 ONCA 903 (CanLII)
  2. R v Sinclair, 2013 ONCA 64 (CanLII)

Applicable Remedies

Where a defence appeal is allowed the court may either order a new trial or enter a verdict of acquittal. (s.686(2))

The court has discretion to enter a verdict of acquittal where:

  • the accused has already served part or all of a fit sentence
  • where there is still sufficient evidence to support a conviction
  • where it would be unfair to the accused to have another trial

s. 686.
...
Order to be made
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial.

...
Where appeal allowed against verdict of unfit to stand trial
(6) Where a court of appeal allows an appeal against a verdict that the accused is unfit to stand trial, it shall, subject to subsection (7), order a new trial.
Appeal court may set aside verdict of unfit to stand trial
(7) Where the verdict that the accused is unfit to stand trial was returned after the close of the case for the prosecution, the court of appeal may, notwithstanding that the verdict is proper, if it is of the opinion that the accused should have been acquitted at the close of the case for the prosecution, allow the appeal, set aside the verdict and direct a judgment or verdict of acquittal to be entered.
Additional powers
(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.
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.


CCC

The Court of Appeal has no power under section 686 to substitute any verdict with a new verdict of "not guilty by reason of mental disorder". It can only order a new trial. However, the scope of the trial can be limited to specific issues only under section 686 (4).[1]

  1. R v Luedecke, 2008 ONCA 716 (CanLII)

Ordering a New Trial

Where a new trial is ordered the provisions of s.686(5) and (5.1) apply:

s. 686.
...
New trial under Part XIX
(5) Subject to subsection (5.01), if an appeal is taken in respect of proceedings under Part XIX and the court of appeal orders a new trial under this Part, the following provisions apply:

(a) if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;
(b) if the accused, in his notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, be held before a judge or provincial court judge, as the case may be, acting under Part XIX, other than a judge or provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or provincial court judge who tried the accused in the first instance;
(c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and
(d) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 553 and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX, other than the provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the provincial court judge who tried the accused in the first instance.

...
Election if new trial a jury trial
(5.1) Subject to subsection (5.2), if a new trial ordered by the court of appeal is to be held before a court composed of a judge and jury,

(a) the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge;
(b) the election shall be deemed to be a re-election within the meaning of subsection 561(5); and
(c) subsection 561(5) applies, with such modifications as the circumstances require, to the election.

...


CCC

Where a new trial is ordered and the result of the new trial is a conviction, the sentence given after the original trial will still be in effect.