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Criminal - Appeals - Curative Proviso [CCC 686]. R. v. A.M.
In R. v. A.M. (Ont CA, 2024) the Divisional Court allowed a criminal appeal, here that focussed on CCC 276 which addresses "to what extent evidence may be led by an accused with respect to a complainant’s sexual activities other than the offence charged" with respect to one or more of 14 listed offences. Here the specific issue was "the test for applying s. 276 to offences that are not specifically listed in the section, which I refer to as “non-enumerated offences”".
Here the court considers whether a 'curative proviso' can apply:[124] The Crown relies on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code to argue that, even if the court were to conclude that the trial judge erred in relation to the scope of permissible cross-examination, “no substantial wrong or miscarriage of justice” occurred.
[125] There are two circumstances where the court’s application of the proviso is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that a conviction was inevitable: R.V., at para. 85. ....
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[130] Rarely will the curative proviso apply where cross‑examination has been improperly curtailed: R.V., at para. 86; R. v. Samaniego, 2022 SCC 9, 466 D.L.R. (4th) 581, at para. 77. That said, even if a trial judge erroneously restricts the scope of cross-examination following a s. 276 application, the proviso may apply if the errors did not prevent the accused from making full answer and defence: R.V., at para. 87.
[131] For example, in R.V. the accused was charged with the listed offences of sexual assault and sexual exploitation. It was alleged that the complainant was a virgin and that she had become pregnant as a result of the assault. The Supreme Court concluded that the trial judge erred in his s. 276 disposition by preventing the accused from putting relevant questions to the complainant in cross-examination about her prior sexual activity during the estimated period of conception. Karakatsanis J., for the majority, emphasized the importance of cross-examination to an accused’s right to make full answer and defence. She stated at para. 64:Simply put, the more important evidence is to the defence, the more weight must be given to the rights of the accused. For example, the need to resort to questions about a complainant’s sexual history will be significantly reduced if the accused can advance a particular theory without referring to the complainant’s sexual history. But in other circumstances – where challenging the Crown’s evidence of the complainant’s sexual history directly implicates the accused’s ability to raise a reasonable doubt – cross-examination becomes fundamental to the accused’s ability to make full answer and defence and must be allowed in some form: [R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at paras. 71 and 94]. [132] Nevertheless, in that case, the Supreme Court applied the curative proviso to restore the convictions. The court concluded that the accused was not prevented from making full answer and defence and that the error had resulted in no substantial wrong. The defence had been permitted to ask questions at trial that allowed the accused to adequately challenge the inference urged by the Crown that the complainant’s pregnancy confirmed his participation in the assault. In particular, counsel was able to advance the theory that the complainant had a boyfriend at the time, and that she had a motive to lie. He was not prevented from exploring the complainant’s definition of “virginity” and what she meant when she told her doctor she was not sexually active at the time she became pregnant. After a careful review of the evidence, the court concluded that the errors in the s. 276 ruling were harmless and there was no reasonable possibility that the verdict would have been different.
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[135] In R. v. Ochrym, 2021 ONCA 48, 69 C.R. (7th) 285, leave to appeal refused, [2021] S.C.C.A. No. 106, this court emphasized the importance of assessing the relationship between the accused and the complainant in determining whether the accused committed the offence of procuring under s. 286.3(1). In granting an appeal from a conviction for procuring by exercising influence over the movements of the complainant because the trial judge had not considered the nature of the relationship and the impact of the appellant’s conduct on the complainant’s state of mind, this court stated, at para. 33:Had Parliament intended s. 286.3(1) to criminalize any conduct affecting a complainant’s movements that facilitates the provision of sexual service[s] for consideration, it would have done so more clearly.… Rather … Parliament used terms which require consideration of whether because of the relationship between the accused and the complainant, the accused was in a position or had the ability to, and did, exercise control, direct or influence the movements of a person who provides sexual services for consideration. Some regard must be had to the nature of the relationship between the accused and the complainant. [136] In Ochrym, the court refused to apply the curative proviso to uphold the conviction, recognizing that, while it was possible that the trial judge may have found the actus reus of the offence to have been satisfied if he had considered the nature of the relationship between the appellant and the complainant, this outcome was not assured. . R. v. Zhou
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement."
Here the court considers the CCC 686(1)(b)(iv) 'curative proviso':[54] Section 686(1)(b)(iv) provides that an appellate court may dismiss an appeal where the court below made a procedural error, as long as the court had jurisdiction over the offence and the error did not cause prejudice to the appellant.
[55] In R. v. Esseghaier, 2021 SCC 9, [2021] 1 S.C.R. 101, at para. 10, the Supreme Court held that s. 686(1)(b)(iv) can be used to cure procedural errors in the jury selection process. Once an error has been identified, the Crown must prove a lack of prejudice on a balance of probabilities: R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, at paras. 82, 112; R. v. Azzi, 2022 ONCA 366, 162 O.R. (3d) 592, at para. 37.
[56] In this case, we are dealing with a procedural error. As reviewed above, at the time of the trial, the Criminal Code required that a peremptory challenge be added for each alternate juror to the total number of peremptory challenges available to the appellant. The trial judge erred in failing to follow this process when he allowed 12 peremptory challenges for the selection of the 12 jurors and 2 additional challenges for the 2 alternate jurors. This was an error in following the procedure set out in the Criminal Code for selecting a jury at that time.
[57] The next issue is whether the trial court had jurisdiction over the class of offences at issue. In Esseghaier, at paras. 47-48, the Supreme Court confirmed that jurisdiction in s. 686(1)(b)(iv) refers to whether the trial court had the capacity to deal with the subject matter of the charges. In this case, there is no dispute that the Superior Court had jurisdiction over the charges.
[58] The final issue is whether the appellant has suffered any prejudice. Prejudice in s. 686(1)(b)(iv) refers not only to actual prejudice, “but also to prejudice in the broader sense of prejudice to the appearance of the due administration of justice”: R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 52. In Esseghaier, at para. 54, the Supreme Court explained:[I]n the context of applying s. 686(1)(b)(iv) to a procedural error in jury selection, the prejudice inquiry is focused solely upon the risk of depriving accused persons of their right, under s. 11(d) of the Charter, to a fair trial by an independent and impartial jury. Where the appellant is able to show that a procedural error led to an improperly constituted jury, the onus shifts to the Crown to show, on a balance of probabilities, that the appellant was not deprived of their right to a fair trial by an independent and impartial jury and, consequently, suffered no prejudice. [Emphasis added.] [59] In this case, the effect of the trial judge’s error was that the appellant was not able to use a peremptory challenge to exclude Juror #11. The issue, therefore, is whether the Crown has established that the appellant’s right under s. 11(d) of the Charter of Rights and Freedoms to a fair trial by an independent and impartial jury was respected despite Juror #11 being on the jury. This inquiry does not focus on whether the appellant got the jury he wanted, but rather whether he got an independent or impartial jury: Esseghaier, at para. 57; Find, at para. 28; and Sampson v. R., 2022 NBCA 24, [2022] N.B.J. No. 141, at paras. 20-21. The question at this stage is whether Juror #11’s participation in the appellant’s trial gave rise to a reasonable apprehension of bias: Chouhan, at para. 31.
[60] In my view, the Crown has shown that the appellant’s right to a fair trial was respected. As reviewed above, jurors are presumed to approach their duties impartially and in accordance with the trial judge’s directions. In this case, Juror #11 explained that his work and personal life placed him in contact with girls who had been the victims of sexual violence. Nonetheless, he stated that he was able and willing to serve as juror. This situation was different from the circumstances surrounding Juror #12, who explicitly stated that he would be predisposed to believe a complainant who came forward with allegations of sexual violence.
[61] Further, as explained above, the courts have rejected the view that people’s prior experience dealing with victims of sexual violence on its own can give rise to a reasonable apprehension of bias. In this case, while Juror #11 disclosed this background because he wanted to ensure the court was aware of it, he confirmed his willingness and ability to serve on the jury. The triers accepted him. No one challenged his ability to serve based on bias at the trial. He took an oath and is thereby presumed to have complied with his obligation to follow the trial judge’s instructions. In all these circumstances, I am satisfied that the trial judge’s error in withholding two peremptory challenges until the selection of alternate jurors did not deprive the appellant of a fair trial by an independent and impartial jury. As such, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code should apply to rectify the error.
[62] I would therefore dismiss the grounds of appeal that arise from the jury selection process. . R. v. Gauthier
In R. v. Gauthier (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal from a first degree murder conviction.
Here the court considers the 'curative proviso' of CCC 686(1)(b)(iii):(d) The Proviso
[86] The Crown argues that even if the trial judge erred in admitting the statements, then this court should invoke s. 686(1)(b)(iii) of the Criminal Code and dismiss the appeal. That section allows an appellate court to dismiss an appeal notwithstanding a legal error in the decision below if the court “is of the opinion that no substantial wrong or miscarriage of justice has occurred”. The Crown argues that even if the statements were improperly admitted there is no “reasonable possibility that the verdict would have been different had the error in issue not been made”: R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 617; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28.
[87] If the Crown seeks to rely on the curative proviso, it “bears the burden to establish one of the requirements of the proviso: that (1) the error of law is ‘harmless’, or (2) despite a potentially prejudicial error of law, there is an ‘overwhelming’ case against the accused”, such that the jury would inevitably have convicted the accused: R. v. Abdullahi, 2023 SCC 19, 428 C.C.C.(3d) 1, at para. 33, citing R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25; see also Khan, at para. 31; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 36. . R. v. Hoggard
In R. v. Hoggard (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal of a conviction for 'sexual assault causing bodily harm'.
Here the court considers the CCC 686(1)(b)(iii) 'curative proviso':(5) Should the curative proviso be applied?
[65] The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, allows the court to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred”. In my view, this is such a case.
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[68] There are two categories of error that will be subject to the proviso: (1) where the error is so harmless or minor that it could not have had an impact on the verdict, or (2) where there are serious errors that would justify a new trial (or an acquittal) but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34, citing R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. On the second category, depriving the accused of another trial is “justified on the ground that the deprivation is minimal when the invariable result would be another conviction”: R. v. S.(P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at p. 916; see also Khan, at para. 31. . R. v. Jenkins
In R. v. Jenkins (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal.
Here the court considers the CCC 686 'curative proviso':[42] The Crown bears the burden to show that the error caused no substantial wrong or miscarriage of justice, in the sense that there is no reasonable possibility that the verdict would have been different if the error had not occurred. The Crown can meet this burden in one of two ways. The error must either be so minor or harmless that it could not have had any impact on the verdict or, if the error is serious, the case against the appellant must be so overwhelming that any other verdict “would have been impossible to obtain”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34; R. v. Tompouba, 2024 SCC 16, at paras. 55, 74-76. . R. v. Colley
In R. v. Colley (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal regarding child murder.
Here the court considers the 'curative provision' under CCC 686(1)(b)(iv):(b) The Curative Proviso Should Not be Applied in This Case
[94] Further, we would decline to apply the proviso in s. 686(1)(b)(iv) of the Criminal Code, which provides:(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of the offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby[.]
[95] In S.M., the court discussed the ambit of this provision, especially in terms of measuring “prejudice”, at para. 45:In the context of s. 686(1)(b)(iv), “prejudice” may include: (a) prejudice to the ability of an accused to properly respond to the Crown’s case and to receive a fair trial; and (b) “prejudice to the appearance of the due administration of justice”: Burnett, at para. 64; R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at para. 33. In that case, the appeal was allowed, turning on the second prong mentioned above – “prejudice to the appearance of the due administration of justice.” See also James, at para. 17. We proceed on the same basis in this case.
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[96] In R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, Watt J.A. provided, at para. 123, a list of considerations for determining whether a breach of s. 650(1) may be salvaged by this curative proviso:Relevant factors may include, but are not limited to,
i. the nature and extent of the exclusion, including whether it was inadvertent or deliberate;
ii. the role or position of the defence counsel in initiating or concurring in the exclusion;
iii. whether any subjects discussed during the exclusion were repeated on the record or otherwise reported to the accused;
iv. whether any discussions in the accused's absence were preliminary in nature or involved decisions about procedural, evidentiary or substantive matters;
v. the effect, if any, of the discussions on the apparent fairness of trial proceedings; and
vi. the effect, if any, of the discussions on decisions about the conduct of the defence. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal applies the curative proviso of CCC 686(1)(b) to dismiss an appeal, here where mistakes were made in a high-profile triple murder:(3) Curative Proviso
[37] Section 686(1)(b)(iii) of the Criminal Code permits an appellate court to dismiss an appeal, even when errors were committed in the court below, if the court is “of the opinion that no substantial wrong or miscarriage of justice has occurred”.
[38] There are two categories of error that will be subject to the proviso: (1) where the error is so harmless or minor that it could not have had an impact on the trial, or (2) where there are serious errors that would justify a new trial but for the fact that the evidence was so overwhelming that any other verdict would have been impossible to obtain: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34. On the second category, depriving the accused of another trial is “justified on the ground that the deprivation is minimal when the invariable result would be another conviction”: R. v. S.(P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at p. 916; see also R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 31. . R. v. A.B.
In R. v. A.B. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal sexual assault appeal. Here the court considers the curative provision of CCC 686(1)(b)(iii) (which it does not apply):[45] The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code allows the court to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred”. The Crown may rely on the curative proviso where the error is harmless or trivial or where the evidence is so overwhelming that a conviction was inevitable: R. v. Samaniego, 2022 SCC 9, at para. 65; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53. The Crown does not suggest that the evidence in this case was overwhelming. Therefore, in deciding whether to apply the curative proviso, the issue is whether “the error was harmless or trivial, such that there is no reasonable possibility that the verdict would have been different had it not been made”: Samaniego, at para. 65. . R. v. Layne
In R. v. Layne (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, in part through the application of the "curative proviso in s. 686(1)(b)(iii) of the Criminal Code":[57] However, this error does not require a new trial because the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, applies. The error was harmless because the trial judge relied on multiple, interlocking, and mutually reinforcing non-erroneous reasoning pathways as a sufficient basis for his decision. There is no reasonable possibility that the verdict would have been different but for this error.
[58] I conclude that the Crown properly raised the proviso. The Crown can raise the proviso implicitly by arguing that a legal error did not prejudice the accused: R. v. Tayo Tompouba, 2024 SCC 16, at paras. 105-106. The Crown did so by making that argument here. Specifically, the Crown pointed to the trial judge’s finding that the discrepancy was not significant and submitted that, even if the prior descriptions were not admissible for their truth, they minimized the discrepancy by showing that it might reflect memory loss.
[59] Under the proviso’s first branch, the appellate court can dismiss the appeal if the trial judge makes a serious legal error as long as it can trace that error’s impact and ensure that it made no difference to the verdict. Thus, the erroneous admission of hearsay may be a harmless error if it was insignificant to the determination of guilt: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 30; R. v. Gunn, 1972 CanLII 174 (SCC), [1974] S.C.R. 273, at pp. 275-277. Appellate courts assess whether an error is harmless by considering it in the context of the entire case, although this assessment does not consider the strength of the Crown’s case: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 93.
[60] Tracing an error’s impact can be more challenging in jury trials because juries do not provide reasons: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 61. It is easier in trials by judge alone if the reasons for judgment provide a roadmap for appellate review. By assessing those reasons, courts may be able to determine that a non-erroneous reasoning path was a sufficient basis for the decision and that any reasoning tainted by the error was not integral to the verdict: see, e.g., R. v. Boughner (2002), 2002 CanLII 44975 (ON CA), 159 O.A.C. 316 (C.A.), at paras. 26-31; R. v. MacIsaac, 2017 ONCA 172, 347 C.C.C. (3d) 37, at para. 50, leave to appeal refused, [2017] S.C.C.A. No. 152; R. v. W.O., 2020 ONCA 392, 454 D.L.R. (4th) 54, at para. 41, aff’d, 2021 SCC 8, [2021] 1 S.C.R. 99. The reasons thus allow the court to assess whether the error is significant in the context of the entire case: R. v. Heltman, 2019 BCCA 468, 384 C.C.C. (3d) 65, at paras. 54, 59-65.
[61] The trial judge’s reasons show that he relied on multiple, interlocking, and mutually reinforcing non-erroneous reasoning pathways to find that the finger tattoo discrepancy was not significant and conclude that the appellant was guilty. As I have explained, the finger tattoo discrepancy was less significant because of the cursive writing hand tattoo’s proximity to the appellant’s pinky finger, and the trial judge reasonably concluded that it had limited value because the victim admitted that his memory deteriorated over time. The trial judge also considered the fact that the victim’s earlier July 5 statements mentioned that the appellant had hand tattoos to reinforce his memory loss finding. This was a legitimate use to assess the probative value of the victim’s in-court testimony, not a hearsay purpose: Tat, at pp. 656-657; Campbell, at paras. 87, 97. Further, the trial judge relied on the close match between the victim’s description of the appellant and the independent confirmatory evidence to find that there was no reasonable doubt.
[62] These interconnected, error-free reasoning pathways permit me to trace the impact of the trial judge’s error and conclude that it would have made no difference to the verdict. It is apparent from his reasons that these pathways were a sufficient basis for his decision, and the fact that he did not state this expressly does not prevent me from drawing this conclusion: Boughner, at para. 31. His brief discussion of the prior descriptions’ hearsay uses was thus insignificant and peripheral to his determination of guilt, like the errors at issue in Boughner, MacIsaac, W.O., and Heltman.
[63] Three additional contextual factors support my decision that the first proviso branch applies. First, the finger tattoo discrepancy did not bolster the appellant’s alternative suspect argument because Mr. McNichols, like the appellant, had cursive writing hand tattoos but lacked finger tattoos. This is significant because that argument was one of the appellant’s principal submissions at trial. Second, the trial judge did not make any additional errors capable of compounding his erroneous use of the July 5 prior descriptions: Jacquard, at para. 60. Third, because the appellant did not testify, his failure to provide an innocent explanation for the evidence pointing to his guilt that the trial judge’s non-erroneous reasoning pathways relied on supports applying the proviso: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at paras. 99-100, 103-104, citing R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, at p. 418. . R. v. M.C.
In R. v. M.C. (Ont CA, 2023) the Court of Appeal considers the CCC s.686(1)(b)(iv) 'curative provision', largely focussing on the R. v. Simon [2010 ONCA 754] treatment of the proviso with respect any prejudice caused by a CCC 650 'accused to be present' issue [at paras 66-89].
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