Criminal Law Notebook

Standard of Appellate Review

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General Principles

The "standard of review" represents the "margin or tolerance" of "deviation" in the judge's findings.[1]

Meaning of Deference on Review

The concept of deference by an appellate court is "aimed at recognizing and upholding the division of labour (adjudicative authority) as between first instance and appellate ... courts".[2]

Categories

All reviewable decisions made by a judge can be seen as answering one of three categories of questions:[3]

  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[4]
Questions of law and questions of fact

All questions of law are to be reviewed on a standard of "correctness".[5]

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.[6] This also includes the interpretation of a legal standard[7] and the application of a standard to settled facts.[8] However, where the facts are in dispute, it is most likely a question of mixed fact and law.[9]

Questions of fact

All questions of fact are reviewed on a standard of "palpable and overriding error".

All findings of facts are questions of fact.[10]

The standard of "palpable and overriding error have been broken down into two components. "Palpable" means that the error is obvious. The logic must be obviously flawed. This would include findings of fact without any evidence or logical errors.[11] "Overriding" means that the error "affects the outcome of the case". That is to say, but for one or more palpable errors, the outcome would have been different.[12]

Questions of mixed fact and law

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".

Exercises of Discretion

The appellate court owes deference to exercises of discretion. However, where the exercise is unreasonable, then no deference is required.[13]

  1. ↑ R v Skinner, 2016 NSCA 54 (CanLII), per Saunders JA, at para 17("The phrase “standard of review” is simply a label used to explain the margin or tolerance for deviation allowed during appellate review, depending upon the category of issue or question challenged on appeal. It is a convenient way to describe the view-finder, the lens, through which we, as appellate judges examine the error alleged to have occurred in the court below.")
  2. ↑ R v Sauverwald, 2020 ABCA 388 (CanLII), per curiam, at para 13 ("Deference is a system-functional concept aimed at recognizing and upholding the division of labour (adjudicative authority) as between first instance and appellate or review courts. Deference relates to fact finding and to exercises of discretion. By comparison, the rule of law requires the appeal court to make a de novo evaluation of whether the flaws in the trial process did in actuality occasion an unfair trial and consequently a miscarriage of justice regardless of innocent intentions: ...")
  3. ↑ Housen v Nikolaisen, 2002 SCC 33 (CanLII), , [2002] 2 SCR 235, per Iacobucci and Major JJ, at paras 8, 10 to 12, 26, 31, 39, 72, and 101
  4. ↑ see also Saint-Jean v Mercier, 2002 SCC 15 (CanLII), , [2002] 1 SCR 491, per Gothier J
  5. ↑ Housen v Nikolaisen, supra, at para 8
    R v Mooney, 2005 NLCA 49 (CanLII), per Rowe JA, at para 18
  6. ↑ 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), per LeBel J, at para 18
    Shepherd, supra
    R v Brooks, 2000 SCC 11 (CanLII), per Bastarache J
  7. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), per Major J, at para 21
  8. ↑ R v Mara, 1997 CanLII 363 (SCC), per Sopinka J, at paras 18 to 19
  9. ↑ R v Grouse, 2004 NSCA 108 (CanLII), per Cromwell JA, at para 44
  10. ↑ R v Shepherd, 2009 SCC 35 (CanLII), per McLachlin CJ and Charron J
  11. ↑ Benheim v St. Germain, 2016 SCC 48 (CanLII), , [2016] 2 SCR 352, per Wagner J, at para 38
  12. ↑ Benheim, ibid.
  13. ↑ R v Haaretz.com v Goldhar, 2018 SCC 28 (CanLII), , [2018] 2 SCR 3, per Côté J, at para 49
    R v Victoria, 2018 ONCA 69 (CanLII), 359 CCC (3d) 179, per curiam, at para 81
    R v Imola, 2019 ONCA 556 (CanLII), per curiam, at para 17 ("We are of the view that the trial judge erred in declining to hear the application. Trial judges have considerable discretion to manage the cases before them and an appellate court will not lightly interfere with that discretion. However, deference is not owed to unreasonable exercises of discretion")

Questions of Law

Questions of Fact

Findings of fact are given deference on appeal.[1] The court of appeal should not substitute their own view of the evidence with the findings of facts of the trial judge.[2]

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.[3]

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

  • findings of fact[4], including:
    • findings of fact relating to Charter breaches[5]
  • Findings of credibility[6]
  • whether an inference can be drawn from established facts[7]
  • whether an officer had an honest subjective belief in the existence of a ground[8]
  • assessing the weight given to an item of evidence or evidence as a whole in determining whether it meets the standard of proof[9]

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.[10]

Reviewing inferences drawn from facts it is not sufficient that a different inference can be drawn from the facts.[11]

  1. ↑ R v D’Onofrio, 2013 ONCA 145 (CanLII), per curiam, at para 1
    R v Yi, 2007 ONCA 185 (CanLII), per curiam, at para 1
    R v JF, 2016 ONCA 900 (CanLII), per curiam, at para 7
    R v Skinner, 2016 NSCA 54 (CanLII), per Saunders JA, at para 23("...a judge’s decisions on questions of fact are not evaluated on a standard of correctness. A high degree of deference is accorded. Even though opinions may differ with regards to particular factual rulings, they will not likely be disturbed because the margin or tolerance for deviation is wide enough to accommodate other outcomes which are reasonable and find support in the evidence. Recalling my analogy, striking the outer rings on the target will suffice and appellate intervention will not be warranted.")
  2. ↑ R v Magagna, 2003 CanLII 655 (ON CA), 173 CCC (3d) 188 (Ont. C.A.), per curiam, at para 12
  3. ↑ L(H) v Canada (Attorney General), 2005 SCC 25 (CanLII), per Fish J
  4. ↑ 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), per Fish J, at para 9
  5. ↑ R v Schmidt, 2011 ABCA 216 (CanLII), per curiam, at para 14
  6. ↑ R v Brooks, 2000 SCC 11 (CanLII), per Bastarache J
  7. ↑ R v Thomas, 1952 CanLII 7 (SCC), per Cartwright J
    Clark, supra, at para 9
    R v Morin, 1992 CanLII 40 (SCC), per Sopinka J, at p. 297 ("a different theory of the facts and the inferences that could be drawn from those facts" are not a question of law)
  8. ↑ {Biccum, supra, at para 10
  9. ↑ R v Powell, 2010 ONCA 105 (CanLII), per Juransz JA, at para 40
    R v AA, 2015 ONCA 558 (CanLII), per Watt JA, at para 65
  10. ↑ R v Lohrer, 2004 SCC 80 (CanLII), 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
  11. ↑ HL v Canada (Attorney General), 2005 SCC 25 (CanLII), 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), 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 SCR 827, per McLachlin J
    R v Horton, 1999 BCCA 150 (CanLII), per Esson JA
    R v McLean, 2010 BCCA 341 (CanLII), per Ryan JA, at para 51
  3. ↑ R v Howe, 2005 CanLII 253 (ON CA), 192 CCC (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 SCR 235, per Iacobucci and Major JJ, at paras 8 to 37
  2. ↑ Hunter v Southam, 1984 CanLII 33 (SCC), , [1984] 2 SCR 145, per Dickson J, at paras 41 to 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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