Criminal Law Notebook

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, per Iacobucci and Major JJ 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, per Gothier J
  3. ↑ Housen v Nikolaisen at para 8
    R v Mooney, 2005 NLCA 49 (CanLII), per Rowe JA at para 18
  4. ↑ R v Shepherd, 2009 SCC 35 (CanLII), per McLachlin CJ and Charron J
  5. ↑ Pushpanathan v Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 SCR 982, per Bastarache J at para 37
    Saint-Jean v Mercier, 2002 SCC 15 (CanLII), [2002] 1 SCR 491, per Gothier J at para 33
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J at para 18
    Shepherd, supra
    R v Brooks, 2000 SCC 11 (CanLII), per Bastarache J
  6. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J at para 21
  7. ↑ R v Mara, 1997 CanLII 363 (SCC), [1997] 2 SCR 630, per Sopinka J at paras 18-19
  8. ↑ R v Grouse 2004 NSCA 108 (CanLII), per Cromwell JA 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), per Fish J
  2. ↑ R v Biccum, 2012 ABCA 80 (CanLII), per curiam at para 10
    R v Fan, 2017 BCCA 99 (CanLII), per Dickson JA at para. 47
    R v Caron, 2011 BCCA 56 (CanLII), per Frankel JA at para. 26
    R v Clark, 2005 SCC 2 (CanLII), [2005] 1 SCR 6, per Fish J at para. 9
  3. ↑ R v Schmidt, 2011 ABCA 216 (CanLII), per curiam at para 14
  4. ↑ R v Brooks, 2000 SCC 11 (CanLII), per Bastarache J
  5. ↑ R v Thomas, 1952 CanLII 7 (SCC), [1952] 2 SCR 344, per Cartwright J
    Clark, supra at para 9
    R v Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286, per Sopinka J 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), per Juransz JA, at para 40
    R v A.A. 2015 ONCA 558 (CanLII), per Watt JA at para 65
  8. ↑ R v Lohrer, 2004 SCC 80 (CanLII), [2004] 3 SCR 732, per Binnie J at para 1
    R v Lee, 2010 ABCA 1 (CanLII), per curiam (2:1) at para 8
    R v O'Neil, 2012 ABCA 162 (CanLII), per curiam
  9. ↑ H.L. v Canada (Attorney General), 2005 SCC 25 (CanLII), [2005] 1 SCR 401, per Fish J 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] It is assessed not just of “what was said, but how it was said.”[3]

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.[4]

Sufficiency of reasons in determining credibility are also accorded deference.[5]

  1. ↑ R v Gagnon, 2006 SCC 17 (CanLII), [2006] 1 SCR 621, per Bastarache and Abella JJ, at para 20 (... “It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this court decided..., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.”)
  2. ↑ see R v W(R), 1992 CanLII 56 (SCC), [1992] 2 SCR 122, per McLachlin J, at p. 131
    Gagnon, supra
    R v Ceal, 2012 BCCA 19 (CanLII), per D Smith JA at para. 24
    R v François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, per McLachlin J
    R v Horton, 1999 BCCA 150 (CanLII){perBCCA|Esson JA}}
    R v McLean, 2010 BCCA 341 (CanLII), per Ryan JA at para. 51
  3. ↑ R v Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, per Doherty JA at para. 46
  4. ↑ Ceal, ibid. at para. 25
    R v Jacobs, 2015 BCCA 83 (CanLII), per Neilson JA at para. 44
    Gagnon, supra at para 20
  5. ↑ see R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR, per Charron J, at para 26

Question of Mixed Fact and Law

A question that is of mixed fact and law will be considered on a standard of "palpable and overriding error".[1]

Where the judge has considered all evidence required by law and comes to the wrong conclusion. This will be an error of mixed fact and law.[2]

However, where the issue may appear to be of mixed fact and law but relates to a failure to consider one or more factual findings, such error will normally be treated as a question of fact and not a mixed question.[3]

Where the question involves "the application of a legal standard to a set of facts", then it is a mixed question of fact and law.[4]

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

  1. ↑ Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, per Iacobucci and Major JJ, at paras 8 - 37
  2. ↑ Hunter v Southam, [1984] 2 SCR 145, 1984 CanLII 33 (SCC), per Dickson J at paras 41 and 45
  3. ↑ Southam, supra, at para. 39
  4. ↑ Housen v Nikolaisen, supra at para 27
  5. ↑ R v Miller 2011 NBCA 52 (CanLII), per Richard JA at para 6
  6. ↑ R v Petri, 2003 MBCA 1 (CanLII), per Kroft JA at para 35

See Also

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