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When an issue has not been raised at trial and the record on that issue is incomplete, this court generally will not entertain the issue on appeal: R v Pino, 2016 ONCA 389 at para 45

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The rationale is based on: (i) prejudice to the other side which lacks the opportunity to respond and adduce evidence; (ii) the absence of a sufficient record; (iii) the societal interest in finality and the expectation that criminal cases will be disposed of at first instance; and (iv) the responsibility of defence counsel to advance all appropriate arguments at first instance: R v Giamou, 2017 ONCA 466 at para 9; see also R v Mian, 2014 SCC 54

 

 

The burden is on the party who seeks to raise the new issue to satisfy three preconditions:

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1.       the evidentiary record must be sufficient to permit the appellate court to fully,

          effectively and fairly determine the issue raised on appeal;

2.      the failure to raise the issue at trial must not be due to tactical reasons; and

3.       the court must be satisfied that no miscarriage of justice will result from the refusal to             raise the new issue on appeal: Giamou at para 10

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In short, while an appellate court may hear and decide new issues not raised at trial, its discretion to do so should not be exercised routinely or lightly. Before doing so, the court “must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed even though it was not raised at trial”: R v Dhanaswar, 2016 ONCA 229 at para 5 (citations ommitted)

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