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Criminal - Appeals - Miscarriage of Justice [s.686(1)(a)(iii)]. R. v. Kuang
In R. v. Kuang (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, this brought against convictions for "assault (Criminal Code, R.S.C. 1985, c. C-46, s. 266), assault causing bodily harm (s. 267(b)), break and enter (s. 348(1)(b)), and two counts of threatening to use a weapon (s. 267(a))".
The court considers whether a 'miscarriage of justice' occurs where criminal counsel fails to advise the defendant of their trial election or right to silence:[33] Establishing these factual components is necessary but not sufficient for a successful IAC claim. The accused must also establish prejudice. As Zarnett J.A. explained in Zock, at para. 45:[A]s White makes clear, it is not enough that the appellant, through ineffective assistance of counsel, was deprived of the important right to elect the mode of trial. A new trial on the basis of ineffective assistance of counsel will only be ordered if the appellant also demonstrates that the loss of the right to elect gave rise to a miscarriage of justice: White, at para. 6. The appellant must establish a reasonable possibility that he would have acted differently if he had received effective assistance from trial counsel; in other words, he must establish a reasonable possibility that he would have elected trial by jury: White, at paras. 6-9. [Emphasis added.] [34] The prejudice requirement applies with equal weight to the right to testify. “The accused must, in most cases, demonstrate more than the loss of choice”: White, at para. 7.
[35] A miscarriage of justice may arise when counsel denies the appellant his right to make either elemental decision and “counsel’s substandard performance raises sufficient concerns about the reliability of the verdict or about the fairness or the appearance of fairness of the trial”: R. v. M.Z., 2026 ONCA 4, at para. 23. However, the standard for establishing a miscarriage of justice solely based on the appearance of unfairness is high. In order to do so, “[t]he defect must be ‘so serious that it shakes public confidence in the administration of justice’”: White, at para. 9, quoting R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51. . R. v. Hernandez Barrios
In R. v. Hernandez Barrios (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here where the court considered whether the "trial judge caused a miscarriage of justice by misapprehending the evidence":[7] We do not accept this submission. A “stringent standard” applies to claims that a trial judge caused a miscarriage of justice by misapprehending the evidence: R. v. Lohrer, 2004 SCC 80, at para. 2. As expressed by LeBel J. in R. v. Sinclair, 2011 SCC 40, at para. 53:In my opinion, for an appellate court to decide to order a new trial on the basis of a miscarriage of justice resulting from a misapprehension of the evidence, more is needed than an “apparent” mistake (e.g., an error that the trial judge may have committed) in the reasons. A court of appeal should not, in applying the Lohrer test, order a new trial unless the trial judge has made a real error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake. When such errors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to be fatally flawed and where they may be found in the reasons. In such situations, the errors are readily obvious. . R. v. Coristine
In R. v. Coristine (Ont CA, 2023) the Court of Appeal considers the test for miscarriage of justice, here focussing on issues of credibility:[37] A miscarriage of justice occurs where “a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541. This is a stringent standard. The misapprehension must be about a substantial portion of the evidence and not a detail, and it must be material rather than peripheral to the trial judge’s reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
[38] Where the misapprehended evidence is used to assess credibility, the issue of whether there has been a miscarriage of justice turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment. If the trial judge mischaracterized parts of the appellant’s evidence that were central to the trial judge’s assessment of her credibility, it is more likely that the appellate court will find a miscarriage of justice: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-38; R. v. S.R., 2022 ONCA 192, at para. 15. . R. v. Kahsai
In R. v. Kahsai (SCC, 2023) the Supreme Court of Canada considered a 'miscarriage of justice' appeal ground, here where the criminal court appointed amicus curiae to an unrepresented defendant:[29] The issue to be decided is whether a miscarriage of justice arose. Mr. Kahsai does not claim to have suffered actual unfairness, but contends that the delayed and limited appointment of amicus led to an appearance of unfairness that rises to the level of a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code.
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[67] To succeed on this appeal, Mr. Kahsai must show that the amicus appointment in his trial created an irregularity so severe that it rendered the trial unfair in fact or in appearance (R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 69 and 73). He will establish a miscarriage of justice if the gravity of the irregularity would create such a serious appearance of unfairness it would shake the public confidence in the administration of justice (R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51, citing R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89). This analysis is conducted from the perspective of a reasonable and objective person, having regard for the circumstances of the trial (Khan, at para. 73). It must also acknowledge that while the accused is entitled to a fair trial, they are not entitled to a perfect trial, and “it is inevitable that minor irregularities will occur from time to time” (Khan, at para. 72).
[68] The “miscarriage of justice” standard — already a high bar — is even higher when claimed based on perceived unfairness instead of actual prejudice. When the perceived unfairness of a trial is at issue, “the appearance of unfairness must be pronounced, such that it would be a serious interference with the administration of justice and offend the community’s sense of fair play and decency” (Davey, at para. 74). Whether a miscarriage of justice arose is a question of law reviewable for correctness (R. v. Schmaltz, 2015 ABCA 4, 599 A.R. 76, at para. 13, citing Schmidt v. The King, 1945 CanLII 4 (SCC), [1945] S.C.R. 438, at p. 439).
[69] Courts have found a miscarriage of justice based on perceived unfairness in a range of circumstances, including where defence counsel shared confidential information with the trial judge, in breach of solicitor-client privilege (R. v. Olusoga, 2019 ONCA 565, 377 C.C.C. (3d) 143); where the trial judge showed prejudgment by implying that a defence witness was committing perjury in his testimony (R. v. Sherry (1995), 1995 CanLII 1027 (ON CA), 26 O.R. (3d) 782 (C.A.)); where defence counsel did not prepare the accused to testify (R. v. Simpson, 2018 NSCA 25, 419 C.R.R. (2d) 174); and where the accused was forced to proceed without representation, despite their stated wishes and being faultless for their circumstance (R. v. Al-Enzi, 2014 ONCA 569, 121 O.R. (3d) 583; R. v. Pastuch, 2022 SKCA 109, 419 C.C.C. (3d) 447). As these examples show, the appearance of unfairness must be serious enough to taint the administration of justice to rise to the level of a miscarriage of justice. The court applies these principles in paras 73-77.
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