General Principles

 

Accused Appeal and Curative Provisio under s.686(1)(b)(iv)

 

Section 686(1)(b)(iv) operates in tandem with s. 686(1)(b)(iii) to avoid quashing convictions on account of procedural or legal errors that could not realistically have had any impact on the verdict, the fairness of the trial, or the appearance of the fairness of the trial: R v Noureddine, 2015 ONCA 770 at paras 46-48

S.686(1)(b)(iv), permits the court of appeal to dismiss appeals despite procedural irregularities if:

  1. The trial court maintained its jurisdiction over the class of offence charged; and

  2. The appellant has suffered no prejudice as a result of the procedural irregularity: 

The prejudice inquiry mandated by s.686(1)(b)(iv) looks both to actual prejudice to the accused, and prejudice to the due administration of justice...an appellate court may infer prejudice from the error without requiring the accused to demonstrate prejudice.  The Crown may rebut the inference of prejudice:  Noureddine at para 62; R v Sciascia, 2016 ONCA 411 at para 85

There are two situations where the curative proviso is appropriate: 1) where the error is harmless or trivial; 2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict - i.e., there is no reasonable possibility that the verdict would have been different had the error not been made: R v Van Every, 2016 ONCA 87 at para 70 

 

It is not open to an appellate court to apply the curative proviso on its own motion. The proviso should be applied only upon submission from a party: R v PG, 2017 ONCA 351 at para 31

Procedural irregularities that compromise the composition or selection of the trial court (e.g., improper jury selection or election) deprive that court of jurisdiction over the class of offence charged and are beyond the reach of s. 686(1)(b)(iv): R v Sciascia, 2016 ONCA 411 at para 83

 

Onus:

 

The Crown bears the burden of demonstrating that the curative proviso is applicable and satisfying the court that the conviction should be upheld notwithstanding the legal error: Van Every at para 70

Accused Appeal of convictions but no Crown appeal of acquittals

 

Where the Crown elects not to appeal acquittals, the appellate court has no jurisdiction to interfere with the verdicts of acquittal: R v Poulin, 2017 ONCA 175 at para 82

Accused appeal one or more, but not all, convictions

 

The Court of Appeal has jurisdiction to allow an appeal only on a conviction that resulted in a miscarriage of justice and not the remaining convictions: R v Quick, 2016 ONCA 95 at para 42

 

 

Accused Appeal from conviction on included offence:

If an accused appeals from conviction on an included offence, the appellate court cannot set aside the acquittal returned on the main charge absent an appeal by the Crown from that acquittal: R v Noureddine, 2015 ONCA 770 at paras 75-76

Section 686(8) does not allow an appellate court to make an ancillary order setting aside an acquittal on a related charge at the same trial: Noureddine at paras 75-76

 

 

Accused Appeal Resulting in Relative Nullity of the Proceedings

 

A “relative nullity” can be relied on only by a party whose personal interests had been adversely affected by the error. Where the Crown does not appeal an acquittal, only the accused can rely on an error resulting in a relative nullity of the proceedings to secure a new trial: R v Noureddine, 2015 ONCA 770 at paras 77-87