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Appeal - Administrative Record. SBJ v. Ali
In SBJ v. Ali (Div Court, 2023) the Divisional Court considered the situation when the appeal record (here, the transcript) had gaps:Issue 1: Do gaps in the hearing transcript prevent a meaningful statutory right of appeal and thus breach SBJ’s rights to natural justice?
[22] Where a gap or gaps in the transcript of a proceeding prejudices a party’s rights to meaningful statutory appeal, the decision may be vulnerable to being sent back on appeal. Ms. Perez submits that given the large number of gaps in the evidence, including 16 interruptions during SBJ’s evidence, which was found not to be credible, that this is such a case. In her submission, this outcome flows from the subject matter of the proceedings which engage fundamental human rights, the broad appeal rights, and the statutory requirement for a transcript to be prepared for the appeal.
[23] Mr. McIntyre submits that the gaps in the transcript are not prejudicial to SBJ’s issue on appeal: the test used by the Board to assess his capacity. The existing transcript is part of a larger record that includes the detailed submissions of counsel, the Board’s reasons and documentary evidence which summarizes the medical evidence, the attending physician’s opinions as to capacity and conversations with SBJ. Further, the existing transcript, even with gaps, is substantial and largely intelligible save for the moments of interference which it is not disputed happen 44 times over an 80-page transcript.
[24] The Supreme Court of Canada considered the impact of a missing transcript on appeal rights in R. v. Hayes, [1989] 1 SCR 44, 1989 CanLII 108. There, the context was an appeal from a charge of first degree murder. A portion of the judge’s charge to the jury was not recorded. The trial judge filled the gap in the transcript from his notes made prior to delivering his charge to the jury.
[25] The majority in Hayes found that there was no serious possibility of an error in the missing part of the transcript or that it deprived the appellant of a ground of appeal. The inquiry by the majority and the dissenting minority was fact-specific.
[26] The majority considered the existence of the judge’s notes, the lack of objection to the charge by defence counsel and the fact that the trial judge provided the jury with the applicable sections of the Criminal Code. The minority would have allowed the appeal based on the missing transcript together with the trial judge’s failure to give a Vetrovec warning concerning the evidence of an accomplice. Together, the minority found this led to “an appearance of a failure of justice.” Both the majority and the minority agreed however, that not every gap in a transcript will require a new trial.
[27] In Ontario cases decided since Hayes, appellate courts have applied the context-specific consideration of whether a missing transcript causes prejudice to appeal rights: See: R. v. Sameluk, 2011 ONCJ 259, at para. 9; R. v. Dobis, 2002 CanLII 32815 (ONCA), at paras. 19-23.
[28] In Dobis, the Ontario Court of Appeal dismissed an appeal from a sentencing decision where portions of the sentencing hearing transcript were missing. The court found that the prejudice in that instance was mitigated by the documentary evidence filed by the Appellant as part of the material before the sentencing judge, which was available on appeal.
[29] In 168774 Ontario Inc. (c.o.b. Swazzees Restaurant and Bar) v. Ontario (Alcohol and Gaming Commission, Registrar), 2017 ONSC 3579, at para. 14, the Divisional Court applied the Hayes test, describing the primary question as whether there is a potential for a miscarriage of justice because a missing portion of the transcript has deprived an appellant of a ground of appeal.
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[38] I conclude that although there are gaps in the transcription of the evidence that speak to the issue of SBJ’s capacity before the Board, and to the findings of credibility, they do not cause prejudice to SBJ’s ability to make submissions on this appeal, on the issue as framed. The issue on appeal is whether the Board’s reasons for decision reveal an error in law by using the incorrect test for capacity. There is no suggestion that the Board misapprehended the evidence before it or made a palpable and overriding error in its appreciation of the evidence. If that were the case, , the gaps in the transcript might have assumed a greater significance. However, on this appeal, the issue relates to how the Board applied the test for capacity and whether it imported a “best interest” standard into its consideration of the evidence, which is well-summarized and not challenged by Ms. Perez.
[39] The test adopted by the majority in Hayes, and applied in cases since, focus on actual prejudice rather than the appearance of justice based on missing portions of the record. I conclude that the interruptions and gaps do not prejudice SBJ’s ability to challenge the Board’s findings on appeal.
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