Criminal Law Notebook

Appellate Powers to Dismiss an Appeal from Conviction

This page was last substantively updated or reviewed June 2021. (Rev. # 95420)

General Principles

Section 686(1)(b) entitles the court to dismiss an accused's appeal in certain circumstances. An appeal can be dismissed where:

  • there is no error in the proceedings (686(1)(b)(ii))
  • there was an improper conviction on only certain counts such that the appeal against the remaining counts can be dismissed (686(1)(b)(i))
  • there were errors of law but it did not result in a "substantial wrong or miscarriage of justice" (686(1)(b)(iii) - sometimes referred to as the "curative proviso")
  • there were procedural irregularities but the accused suffered no prejudices (686(1)(b)(iv))

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

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

[omitted (a)]
(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,
[omitted (ii), (iii) and (iv)]
[omitted (c), (d) and (e)]

[omitted (2), (3), (4), (5), (5.01), (5.1), (5.2), (6), (7) and (8)]
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; 2015, c. 3, s. 54(F); 2019, c. 25, s. 282(E).

– CCC (CanLII), (DOJ)

Note up: 686(1)

Court May Substitute Incorrect Verdict for Correct One and Re-Assess Sentence

686
[omitted (1) and (2)]

Substituting verdict

(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i) [dismissal for proper conviction on another count], 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.

[omitted (4), (5), (5.01), (5.1), (5.2), (6), (7) and (8)]
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; 2015, c. 3, s. 54(F); 2019, c. 25, s. 282(E).

[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 686(3)

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.

Powers

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

[omitted (a)]
(b) may dismiss the appeal where
[omitted (i)]
(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a) [being unreasonable verdict, error of law, or miscarriage of justice],
[omitted (iii) and (iv)]
[omitted (c), (d) and (e)]

[omitted (2), (3), (4), (5), (5.01), (5.1), (5.2), (6), (7) and (8)]
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; 2015, c. 3, s. 54(F); 2019, c. 25, s. 282(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 686(1)


Defined terms: "court of appeal" (s. 673), "mental disorder" (s. 2), and "unfit to stand trial" (s. 2)

No Substantial Wrong or Miscarriage of Justice (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]

Powers

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

[omitted (a)]
(b) may dismiss the appeal where
[omitted (i) and (ii)]
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) [basis of wrong decision on a question of law] 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
[omitted (iv)]
[omitted (c), (d), (e)]

[omitted (2), (3), (4), (5), (5.01), (5.1), (5.2), (6), (7) and (8)]
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; 2015, c. 3, s. 54(F); 2019, c. 25, s. 282(E).
[annotation(s) added]

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."
When Is It Raised

The court cannot, on its own motion, rely on the curative proviso.[3]

There is no obligation that the Crown must "specifically request" the court to rely on the proviso to uphold the conviction. The court in "rare cases" may not be constrained by the Crown's failure to raise the proviso.[4]

Traditionally, the court would only be able to rely on the proviso if there was a specific notice of this by the Crown.[5] The modern approach permits reliance on the provision by implication.[6]


Burden and Standard

Either of these criteria must be established on a balance of probabilities.[7]

The burden is on the Crown to prove the applicability of the curative proviso.[8]

Evidence

In establishing that the case was "overwhelming", the onus is upon the Crown to meet this "high standard"[9] 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.[10] In order to deprive an accused of a proper trial, the deprivation must be minimal such that the invariable result would be another conviction.[11]

Requirements

The evidence must be "powerful" with "no realistic possibility" that a new trial would be different.[12] There should be "no reasonable possibility that the verdict would have been different."[13]

Court Cannot Raise Issue

The Crown must specifically raise the curative proviso on their own. It is an error of law for the court to otherwise rely on it.[14]

  1. ↑ R v O'Brien, 2011 SCC 29 (CanLII), [2011] 2 SCR 485, per Abella J, at paras 33, 34
  2. ↑ R v Van, 2009 SCC 22 (CanLII), [2009] 1 SCR 716, per LeBel J, at paras 34 to 36
    R v Khan, 2001 SCC 86 (CanLII), [2001] 3 SCR 823, per Arbour J
    R v Trochym, 2007 SCC 6 (CanLII), [2007] 1 SCR 239, per Deschamps J
    R v Sekhon, 2014 SCC 15 (CanLII), [2014] 1 SCR 272, per Moldaver J, at para 53
  3. ↑ R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, at paras 138 to 142
  4. ↑ Herritt, ibid., at paras 138 to 142
  5. ↑ R v Settle, 2021 ABCA 221 (CanLII), per Watson JA, at para 11
    R v McMaster, 1996 CanLII 234 (SCC), [1996] 1 SCR 740, per CJ, at para 37 ("In conclusion, I am of the view that the trial judge’s misdirection on the law of intoxication constituted an error of law. The respondent has not raised s. 686(1)(b)(iii) of the Code in argument. ... “[t]he Crown has the burden of showing that this provision is applicable …. This Court cannot apply it proprio motu.”")
  6. ↑ Settle, supra at para 11
  7. ↑ O'Brien, supra, at para 34
  8. ↑ Van, supra, at para 34
  9. ↑ O'Brien, supra, at para 33
  10. ↑ O'Brien, supra, at para 48
  11. ↑ R v S(PL), 1991 CanLII 103 (SCC), 64 CCC (3d) 193, per Sopinka J, at p. 916
  12. ↑ R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 46
  13. ↑ R v Bevan, 1993 CanLII 101 (SCC), [1993] 2 SCR 599, per Major J, at pp. 616-618
    R v Merz, 1999 CanLII 1647 (ON CA), 140 CCC (3d) 259, per Doherty JA, at pp. 178-180
  14. ↑ R v Bisson, 2010 ONCA 556 (CanLII), 258 CCC (3d) 338, per Epstein JA

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

Under s. 686(1)(b)(iv), the Court may dismiss a defence appeal despite irregularities at trial. The section states:

Powers

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

[omitted (a)]
(b) may dismiss the appeal where
[omitted (i), (ii) and (iii)]
(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;
[omitted (c), (d), (e)]

[omitted (2), (3), (4), (5), (5.01), (5.1), (5.2), (6), (7), (8)]
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; 2015, c. 3, s. 54(F); 2019, c. 25, s. 282(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 686(1)


Defined terms: "court of appeal" and "mental disorder" (s. 2)

The purpose of s. 686(1)(b)(iv) is to "expand the remedial powers of the court to engage with jurisdictional errors"(cleaned up).[1]

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.[2]

Dismissal is particularly appropriate where there is no appearance of unfairness and counsel did not object.[3]

Private interactions between the trial judge and prospective jurors may lack prejudice in where there is no appearance of unfairness.[4]

The phrase "trial court had jurisdiction over the class of offence" refers to the three classes of offences: s. 469 offences, non-469 electable offences, and summary conviction offences.[5]

Errors in Jury Selection

The curative proviso can be applied to jury selection errors where the appellate court is of the opinion that the accused "suffer no prejudice". The proviso does not require a properly constituted jury panel.[6]

  1. ↑ R v Esseghaier, 2021 SCC 9 (CanLII), 454 DLR (4th) 179, per Moldaver and Brown JJ, at para 46
  2. ↑ R v Kakegamic, 2010 ONCA 903 (CanLII), 265 CCC (3d) 420, per Doherty JA
  3. ↑ R v Sinclair, 2013 ONCA 64 (CanLII), 300 CCC (3d) 69, per Rouleau JA
  4. ↑ Sinclair, supra
  5. ↑ Esseghaier, supra
  6. ↑ Esseghaier, supra
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