APPEALS - NEW ISSUE BY COURT
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ
Criminal law — Appeals — Powers of Court of Appeal — Accused charged with possession of cocaine and possession of currency obtained by crime — Court of Appeal raising new issues on appeal — Whether appeal court erred in ordering new trial on basis of improper cross-examination — Whether appeal court erred in raising new issue on appeal.
... The accused was charged with possession of cocaine for the purpose of trafficking and possession of currency obtained by the commission of an offence. The trial judge determined that the accused’s rights under s. 10(a) and (b) of the Charter were breached because the constables waited 22 minutes to inform him of the reasons for his arrest and an extra 2 to 5 minutes to inform him of his right to retain and instruct counsel. The trial judge noted that defence counsel cross-examined the detective who instructed constables to arrest and search the accused. During this cross-examination, defence counsel confronted the detective about the testimony of another Crown witness, which differed from the detective’s concerning the grounds to arrest and search the accused. Ultimately, all evidence was excluded and the accused was acquitted. The Crown appealed. After the Crown and defence counsel filed their written submissions, the Court of Appeal provided the parties with a list of cases and called their attention to two issues for comment during oral argument: (1) what is a question of law on an appeal from an acquittal; and (2) the limits of cross-examination and consequences of exceeding the limits. During the oral hearing, both counsel made submissions on whether the defence had conducted an improper examination of the detective by asking him to comment on the veracity of another officer’s testimony. The Court of Appeal allowed the appeal on the basis that the trial judge erred in law by relying on the impermissible cross-examination of the police detective. The acquittals were set aside and a new trial ordered.
Held: The appeal should be allowed and the acquittals restored.
An appellate court has the jurisdiction to raise new issues and invite submissions on an issue neither party has raised. An issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties. Issues that are rooted in or are components of an existing issue are not new issues nor are issues that form the backdrop of appellate litigation. Furthermore, not all questions asked by an appeal court will constitute a new issue. Questions raised during the oral hearing may properly touch on a broad range of issues, which may be components of the grounds of appeal put forward by the parties, or may go outside of those grounds in an aim to understand the context, statutory background or larger implications. Absent any concerns about bias, questions raised during the oral hearing, whether linked directly or by extension to the grounds of appeal or not, are not improper.
While appellate courts have the discretion to raise a new issue, this discretion should be exercised only in rare circumstances. An appellate court should only raise a new issue when failing to do so would risk an injustice. At all times the discretion is limited by the requirement that raising the new issue cannot suggest bias or partiality on the part of the court. Courts cannot be seen to go in search of a wrong to right. Where there is good reason to believe that the result would realistically have differed had the error not been made, this risk of injustice warrants the court of appeal’s intervention. The standard of “good reason to believe” that a failure to raise a new issue “would risk an injustice” is a significant threshold which is necessary in this context in order to strike an appropriate balance between the role of appellate courts as independent and impartial arbiters with the need to ensure that justice is done. In order to raise a new issue, the court should also consider whether it has the jurisdiction to consider the issue, whether there is a sufficient record on which to raise the issue and whether raising the issue would result in procedural prejudice to any party.
When an appellate court raises a new issue, there must be notification and opportunity to respond. The court of appeal must make the parties aware that it has discerned a potential issue and ensure that they are sufficiently informed so they may prepare and respond. Requiring that strict procedural standards be followed would fail to recognize that the issue may arise in different circumstances in different cases. The court should raise the issue as soon as is practically possible after the issue crystallizes so as to avoid any undue delay in the proceedings. However, notification of the new issue may occur before the oral hearing, or the issue may be raised during the oral hearing. The notification should not contain too much detail, or indicate that the court of appeal has already formed an opinion, however it must contain enough information to allow the parties to respond to the new issue. The requirements for the response will depend on the particular issue raised by the court. Counsel may wish to simply address the issue orally, file further written argument, or both. The underlying concern should be ensuring that the court receives full submissions on the issue. If a party asks to file written submissions before or after the oral hearing, there should be a presumption in favour of granting the request. Recusal of a judge or panel should be rare and should be governed by the overriding consideration of whether the new issue or the way in which it was raised could lead to a reasonable apprehension of bias.
In this case, the Court of Appeal erred in raising the new issue of improper cross-examination. The impugned question on cross-examination did not impact the trial judge’s decision. The error was not material and the result would not have been different had the trial judge not allowed the impugned cross-examination. Even if the trial judge had relied on the impugned question, it had no material bearing on the outcome so as to raise a realistic risk of an injustice. It is also significant that the improper question was put to a Crown witness, rather than the accused. Furthermore, the Crown neither objected to the impermissible question nor raised it as an issue on appeal which suggests that the question did not have a serious effect on the outcome of the voir dire. As not raising the issue of the impugned cross-examination would not have risked an injustice, it follows that the Court of Appeal erred in raising the issue.
There is also no basis to overturn the trial judge’s conclusion that the accused’s s. 10 Charter rights were breached. The trial judge found as a fact that there was insufficient evidence to support the assertion that immediate compliance with s. 10 of the Charter would have compromised the ongoing investigation. As Crown appeals from acquittals are restricted to questions of law, findings of fact can only be undermined in limited situations, not applicable in this case. There were no exceptional circumstances to justify the delay by the police in complying with their s. 10 informational duties and therefore no reason to disturb the trial judge’s conclusion that s. 10(a) and (b) of the Charter were infringed. Furthermore, in view of the deferential standard of review on appeal and because the Crown’s arguments with respect to the trial judge’s s. 24(2) findings amount to an attack on the trial judge’s findings of fact, the trial judge’s order to exclude the evidence under s. 24(2) of the Charter should also not be interfered with.