Standard of Appellate Review

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General Principles

All reviewable decisions made by a judge can be seen as answering one of three categories of questions:[1]

  1. questions of law: what is the correct legal test to be applied
  2. questions of fact: what took place between the parties
  3. questions of mixed law and fact: whether the facts satisfy the correct legal tests[2]

All questions of law are to be reviewed on a standard of "correctness".[3] All questions of fact are reviewed on a standard of "palpable and overriding error".

All findings of facts are questions of fact.[4]

A question of law inquire into the "correct legal test" to be applied for a particular legal issue or the "the application of a legal standard" to facts.[5] This also includes the interpretation of a legal standard[6] and the application of a standard to settled facts.[7] However, where the facts are in dispute, it is most likely a question of mixed fact and law.[8]

Where the question is neither purely a question of law or question of fact, then it is considered a question of ""questions of mixed law and fact".

  1. Housen v Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235 at paras 8, 10, 11, 12, 26, 31, 39, 72, and 101
  2. see also Saint-Jean v Mercier, 2002 SCC 15 (CanLII), [2002] 1 SCR 491
  3. Housen v Nikolaisen at para 8
    R v Mooney, 2005 NLCA 49 (CanLII) at para 18
  4. R v Shepherd, 2009 SCC 35 (CanLII)
  5. Pushpanathan v Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 SCR 982 at para 37
    Saint-Jean v Mercier, 2002 SCC 15 (CanLII), [2002] 1 SCR 491 at para 33
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at para 18
    R v Shepherd, 2009 SCC 35 (CanLII), [2009] 2 SCR 527
    R v Brooks, 2000 SCC 11 (CanLII)
  6. R v Ewanchuk , 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para 21
  7. R v Mara, 1997 CanLII 363 (SCC), [1997] 2 SCR 630 at paras 18-19
  8. R v Grouse 2004 NSCA 108 (CanLII) at para 44

Questions of Law

Questions of Fact

Where a palpable and overriding error has been found, the judge may intervene with its view of the evidence as well as draw inferences based on that evidence.[1]

The following have been found to be questions of fact and so reviewable on the palpable and overriding error:

  • findings of fact[2], including:
    • findings of fact relating to Charter breaches[3]
  • Findings of credibility[4]
  • whether an inference can be drawn from established facts[5]
  • whether an officer had an honest subjective belief in the existence of a ground[6]
  • assessing the weight given to an item of evidence or evidence as a whole in determining whether it meets the standard of proof[7]

A judge's assessment of evidence, such as whether a judge can rely on a document for the truth of its contents, is reviewed on a standard of palpable and overriding error that the finding of fact played an essential part in the reasoning.[8]

Reviewing inferences drawn from facts it is not sufficient that a different inference can be drawn from the facts.[9]

  1. L. (H.) v Canada (Attorney General) 2005 SCC 25 (CanLII)
  2. R v Biccum, 2012 ABCA 80 (CanLII) at para 10
  3. R v Schmidt, 2011 ABCA 216 (CanLII) at para 14
  4. R v Brooks, 2000 SCC 11 (CanLII)
  5. R v Thomas, 1952 CanLII 7 (SCC), [1952] 2 SCR 344
    R v Clarke, 2005 SCC 2 (CanLII), [2005] 1 SCR 6 at para 9
    R v Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286 at 297 ("a different theory of the facts and the inferences that could be drawn from those facts" are not a question of law)
  6. R v Biccum at para 10
  7. R v Powell, 2010 ONCA 105 (CanLII), at para 40
    R v A.A. 2015 ONCA 558 (CanLII) at para 65
  8. R v Lohrer, 2004 SCC 80 (CanLII), [2004] 3 SCR 732 at para 1
    R v Lee, 2010 ABCA 1 (CanLII) at para 8
    R v O'Neil, 2012 ABCA 162 (CanLII)
  9. H.L. v Canada (Attorney General), 2005 SCC 25 (CanLII), [2005] 1 SCR 401 at para 74

Reviewing Findings of Credibility

See also: Analyzing Testimony

Matters of credibility are given considerable deference. [1] The trial judge has a "significant advantage" of being able to see and hear the evidence.[2]

Unless there is a "palpable and overriding error" in the findings of fact by the judge in assessing credibility, the findings should not be overturned.[3]

Sufficiency of reasons in determining credibility are also accorded deference.[4]

  1. R v Gagnon, 2006 SCC 17 (CanLII), [2006] 1 SCR 621, at para 20
  2. see R v W(R), 1992 CanLII 56 (SCC), [1992] 2 SCR 122, at p. 131
    R v Ceal 2012 BCCA 19 (CanLII) at para. 24
  3. Ceal, ibid. at para. 25
    R v Jacobs, 2015 BCCA 83 (CanLII) at para. 44
    Gagnon, supra at para 20
  4. see R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR, at para 26

Question of Mixed Fact and Law

The following have been considered questions of "mixed fact and law":

  1. R v Miller 2011 NBCA 52 (CanLII) at para 6
  2. R v Petri, 2003 MBCA 1 (CanLII) at para 35

See Also