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Criminal - Appeals - Curative Proviso - s.686(1)(a,b) (2). R. v. Ripley
In R. v. Ripley (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against a "conviction for aggravated assault" against a young child.
Here the court would apply the 'curative proviso' of CCC 686(1)(b)(iii):d. The Curative Proviso Applies
[45] Even if the trial judge erred in how he approached this issue, in the sense that he made more than just an observation, this is the type of error that would not warrant appellate intervention, and I would apply s. 686(1)(b)(iii) of the Criminal Code.
[46] Pursuant to s. 686(1)(b)(iii), the Crown bears the burden of showing that one of the two branches of the curative proviso applies such that no substantial wrong or miscarriage of justice has occurred.
[47] The branches include: (i) harmless errors, meaning that the error “could not have had any impact on the verdict”; and (ii) overwhelming cases, such that the evidence against the appellant was “so overwhelming that a reasonable and properly instructed jury would inevitably have convicted”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-6. In my view, both of these branches apply in this case.
[48] First, the harmless error branch.
[49] As already described, the trial judge gave numerous reasons for rejecting the appellant’s credibility, including that: it was inconsistent with the medical evidence that he accepted; the appellant had given multiple inconsistent and ever-cascading accounts of what occurred; it was “inconceivable” that the appellant would only recall the final critical event at trial; the bruising on the ears was not consistent with an accidental or self-inflicted injury; and, the evidence was just generally “implausible.” With or without the impugned comment, it is entirely safe to say that the appellant’s evidence was being rejected on several bases. This is why, even if the trial judge erred as the appellant suggests, the error was entirely harmless and had no impact on the verdict. In these circumstances, I lean on and adopt LeBel J.’s comment in Van, at para. 35, where he said that “it would detract from society’s perception of trial fairness and the proper administration of justice if errors such as these could too readily lead to an acquittal or new trial”. In my view, even if the trial judge erred, that error was entirely irrelevant to the end result, in the sense that the reasons clearly reflect that the appellant’s evidence was being rejected with or without that observation.
[50] Applying the second branch of the curative proviso, the evidence against the appellant was overwhelming. The expert evidence, which was accepted by the trial judge, concluded that the severe cranial fracture would not have resulted from typical falls, including from low structures like beds. And a toddler could not “generate” the force necessary to inflict such severe and widespread injury through self-inflicted head banging or throwing themself around in a temper tantrum. It would have been, as the expert testified, “an unprecedented extent of injury and bruising from self-infliction that I’ve never heard of before, nor seen in my practice”.
[51] This uncontroverted medical evidence and the appellant’s inability to stick with one version of events gave rise to an overwhelming Crown case, one where any reasonable and properly instructed jury would inevitably have convicted: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823 [Khan 2001], at para. 31. The invariable result here, were a retrial to be ordered, would in fact be a conviction. Against this reality, there being no realistic possibility that a new trial would result in anything but a conviction, I echo the comment of Binnie J. in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46: “[I]t is manifestly in the public interest to avoid the cost and delay of further proceedings. Parliament has so provided.” See also: Khan 2001, at para. 90; Van, at para. 36. . R. v. Pan
In R. v. Pan (SCC, 2025) the Supreme Court of Canada dismissed a Crown criminal appeal, here from an Ontario Court of Appeal set aside of convictions for first degree murder, and the ordering of a new trial.
Here the court considers whether the failure to advise a jury of an included offence verdict could be subject of a curative proviso [under s.686(1)(a)(ii) and s.686(1)(a)(iii)]:[86] Failure to instruct the jury on a potential verdict is an error of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code (Sarrazin, at para. 64). An error of law will warrant setting aside the conviction under s. 686(2). However, under s. 686(1)(b)(iii), a court of appeal may dismiss the appeal and uphold the conviction where the Crown can establish that no substantial wrong or miscarriage of justice flowed from the error (para. 65; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 21).
[87] Specifically, the curative proviso set out in s. 686(1)(b)(iii) is available where: (1) the error or irregularity in question is minor or harmless, such that it had no impact on the verdict; or (2) the error or irregularity, despite being serious enough to warrant a new trial, caused no substantial wrong or miscarriage of justice because the evidence against the accused is so overwhelming that a trier of fact would inevitably convict (see R. v. Tayo Tompouba, 2024 SCC 16, at para. 76).
[88] In simple terms, the question is whether there is no reasonable possibility that the verdict would have been different had the legal error not been committed (Sarrazin, at para. 65). I am not satisfied that the Crown has met its burden in this regard.
[89] This Court has established that a conviction on a more serious charge cannot be taken to mean that a jury would not have convicted on a lesser charge had it been available (Haughton). In such circumstances, as mentioned above, there is always the risk that “the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable” (p. 517).
[90] Only in rare cases will it be possible to conclude that an error in failing to leave an available verdict with the jury did not cause a substantial wrong. As Doherty J.A. suggested in Ronald, the proviso may apply where “the court can take into account findings of fact implicit in the verdict or verdicts returned by the jury as long as those verdicts are not tainted by the legal error, and those findings are unambiguously revealed by the verdict” (paras. 68-69). With that said, the court must remain mindful of the risk that the jury convicted on the principal offence solely because an acquittal was the only other option. While I would not foreclose the possibility that, in rare instances, the air of reality to an included offence will be so marginal as to permit the application of the proviso, this is not one those cases.
[91] Had the jury been properly instructed on the included offence theories, it would have had to grapple with the evidence suggesting that Jennifer did not have the same animus towards her mother as she did towards her father. I would note that much of this evidence came from Jennifer herself, whose theory at trial was that the only plan in November 2010 was that she herself would be killed, and who thus had no interest in admitting any animus towards either parent. That she did admit her animus towards her father while maintaining that her mother was “the perfect mother” is not insignificant (A.R., part V, vol. L, at p. 310). Reasonable doubt about planning and deliberation, as I have stressed, is a low bar.
[92] I do not dispute that a conviction on one of the included offences, particularly second degree murder, which has a subjective mens rea element, would require the jury to draw important inferences based solely on circumstantial evidence. However, I would not consider a conviction on either one of those offences to be outside the realm of possibility. I therefore conclude that the curative proviso does not apply.
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