SCC limits appeal courts’ ability to raise new issues

“Courts cannot be seen to go in search of a wrong to right.”

So ruled the Supreme Court of Canada today in Mian v. R. — a case that limits the discretion of appeal courts to raise new issues that unduly assist one side in a dispute.

The case stems from the arrest of Mohammad Hassan Mian, an alleged drug dealer who was arrested and found to be in possession of cocaine for the purposes of trafficking. During the arrest, however, police officers waited nearly half an hour to inform him of the reasons for his arrest and his right to a lawyer.

At trial, Mian was acquitted on grounds that his Charter rights had been violated. The judge also found that there were inconsistencies between the lead detective’s testimony and that of a police officer.

But that decision was reversed after the Alberta Court of Appeal raised a new issue in the case — particularly, that defence counsel had improperly cross-examined the lead detective.

Today’s unanimous ruling, however, written by Justice Marshall Rothstein, restores the trial judge’s acquittal and places limits on the circumstances in which appeal courts may raise new issues.

The ruling states: “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.”

“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.”

The ruling also formalizes, for the first time, the requirement that judges sufficiently notify parties if they wish to raise new issues — and that seems not to have been the case here.

While the court did issue a letter to parties prior to the oral hearing, the letter was “so bare that you really couldn’t tell what the court was getting at,” says Daniel Song, the lawyer at Sprake Song & Konye in Edmonton who represented Mian.

Song says appeal courts, for the most part, have shown restraint in raising new issues that might aid one side in a dispute, but the Alberta Court of Appeal had recently made a habit of it.

“It appeared that in Alberta it was just getting to be a matter of course,” he says.

Rothstein’s decision affirms the need for judges to show restraint and “try to act as the neutral decision-maker,” says Song. “It’s only in the circumstances where they feel compelled to fix an injustice that they will be allowed to wade into the arena of the advocate.”

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