Standard of Appellate Review
General Principles
All reviewable decisions made by a judge can be seen as answering one of three categories of questions:[1]
- questions of law: what is the correct legal test to be applied
- questions of fact: what took place between the parties
- 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".
- ↑ Housen v Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235 at paras 8, 10, 11, 12, 26, 31, 39, 72, and 101
- ↑ see also Saint-Jean v Mercier, 2002 SCC 15 (CanLII), [2002] 1 SCR 491
- ↑
Housen v Nikolaisen at para 8
R v Mooney, 2005 NLCA 49 (CanLII) at para 18
- ↑ R v Shepherd, 2009 SCC 35 (CanLII)
- ↑
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)
- ↑ R v Ewanchuk , 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at para 21
- ↑ R v Mara, 1997 CanLII 363 (SCC), [1997] 2 SCR 630 at paras 18-19
- ↑ 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]
- ↑ L. (H.) v Canada (Attorney General) 2005 SCC 25 (CanLII)
- ↑ R v Biccum, 2012 ABCA 80 (CanLII) at para 10
R v Fan, 2017 BCCA 99 (CanLII) at para. 47
R v Caron, 2011 BCCA 56 (CanLII) at para. 26
R v Clark, 2005 SCC 2 (CanLII), [2005] 1 SCR 6 at para. 9
- ↑
R v Schmidt, 2011 ABCA 216 (CanLII) at para 14
- ↑ R v Brooks, 2000 SCC 11 (CanLII)
- ↑ R v Thomas, 1952 CanLII 7 (SCC), [1952] 2 SCR 344
Clark, supra 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)
- ↑ R v Biccum at para 10
- ↑
R v Powell, 2010 ONCA 105 (CanLII), at para 40
R v A.A. 2015 ONCA 558 (CanLII) at para 65
- ↑
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)
- ↑
H.L. v Canada (Attorney General), 2005 SCC 25 (CanLII), [2005] 1 SCR 401 at para 74
Reviewing Findings of Credibility
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]
- ↑ R v Gagnon, 2006 SCC 17 (CanLII), [2006] 1 SCR 621, at para 20
- ↑
see R v W(R), 1992 CanLII 56 (SCC), [1992] 2 SCR 122, at p. 131
Gagnon
R v Ceal, 2012 BCCA 19 (CanLII) at para. 24
- ↑
Ceal, ibid. at para. 25
R v Jacobs, 2015 BCCA 83 (CanLII) at para. 44
Gagnon, supra at para 20
- ↑ see R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR, 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 a error of mixed fact and law.<rfe>
Hunter v Southam at paras 41 and 45
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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 question of fact and not a mixed question.[2]
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.[3]
The following have also been considered questions of "mixed fact and law":
- A defence appeal of conviction to withdraw a guilty plea[4]
- Voluntariness of a statement[5]
- ↑
Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, per Iacobucci and Major JJ, at paras 8 - 37
- ↑ Southam, supra, at para. 39
- ↑
Housen v. Nikolaisen, 2002 SCC 33 (CanLII), at para 27
- ↑ R v Miller 2011 NBCA 52 (CanLII) at para 6
- ↑ R v Petri, 2003 MBCA 1 (CanLII) at para 35