CRISTIN SCHMITZ OTTAWA
The Supreme Court of Canada
has rejected a proposal from one
of its new members to make it
easier for appeal courts to uphold
criminal convictions, despite
legal errors at trial.
On Nov. 4, the high court split
6-3 in affirming an Ontario Court
of Appeal majority decision
ordering a new trial for two
Montreal men who had been
twice convicted by juries of murdering a rival gang member outside an Ottawa nightclub in 1998.
The majority dismissed the
appellant Ontario Crown’s argument that the second-degree
murder convictions should be
upheld, notwithstanding that the
judge at the second trial erred by
failing to let the jury consider
whether the men might be guilty
of the lesser included offence of
attempted murder (R. v. Sarrazin
and Jean).
Notably, however, all nine
judges rejected a proposal from
the Bench last year by their new
colleague, Justice Michael Moldaver, who dissented in Sarrazin
while he was at the Ontario Court
of Appeal. (Justice Moldaver
joined the Supreme Court last
month and sat on his first case—
on the right to silence—on November 8).
In his lone dissent in Sarrazin,
Justice Moldaver urged the top
court to make it easier for the
Crown to persuade an appellate
court to use the Criminal Code’s
“curative proviso” to uphold convictions, despite legal errors
made at trial.
The curative proviso in s.
686(1)(b)(iii) of the Criminal
Code permits an appeal court to
uphold a jury’s verdict, notwith-
standing a trial judge’s error(s) of
law, provided that the appeal
court is satisfied that no substan-
tial wrong or miscarriage of jus-
tice occurred due to the error(s).
Moldaver
Stuart called it “quite amaz-
ing that a sitting judge would
actually suggest to the Supreme
Court of Canada— when he was
on the Ontario Court of Appeal —
that these rules are too tough for
the Crown.”
Silverstein said the decision
sends a message “that failure to
leave an included offence [with
the jury] in a case such as this
will usually require a new trial.”
The test for applying the cura-
tive proviso “remains high,” he
observed, “which is to say, where
there is an error of law that goes
to a significant issue in the case,
it will be the rare case indeed
where the court will say: ‘Well it
doesn’t matter.’ ”
Justice Moldaver had urged the
Supreme Court to relax the
existing requirement on the Crown
to demonstrate an “overwhelm-
ing” case against the accused to
the lesser standard of a “very
strong” case, and to allow appel-
late courts to tolerate errors of law
that while not “insignificant” are
nevertheless “highly unlikely to
have affected the result.”
In his critique of that pro-
posal, Justice Ian Binnie said “it
seems to me that there is a sig-
nificant difference between an
error of law that can be confi-
dently dismissed as ‘harmless,’
and an assessment that, while the
error is prejudicial, it is not (in
the after-the-fact view of the
appellate court), so prejudicial as
to have affected the outcome.
Such delicate assessments are
foreign to the purpose of the cur-
ative proviso, which is to avoid a
retrial that would be superfluous
and unnecessary, but to set high
the Crown’s burden of establish-
ing those prerequisites.”
The court ruled 9-0 that the
judge at the second Sarrazin trial
was wrong not to inform the jury
of the possibility that the accused
might have been guilty of the
lesser included offence of
attempted murder.
CONTENTS
NEWS
LAWYERS WIN round in pay
battle............................................1
CHARRON PRAISES system
others ‘envy’ ................................1
SCC REJECTS bid by new
member .......................................2
COMMISSION TOLD to reconsider
lawyer’s ban................................. 3
SEXIST TALK lands judge in hot
water ......................................... 27
KNOW WHAT you have, and
protect it .................................... 11
Bankruptcy & Insolvency
NOT EASY for students to bail out
on loans ..................................... 15
BUSINESS & CAREERS
WORK IN sprints and avoid
marathons .................................. 21
GOOD WAYS to package bad
news .......................................... 26
OPINION
DEPAR TMENTS KAREN SELICK .......................... 5
FOCUS
Information Technology
WEB TIME travel with the
‘Wayback Machine’...................... 9
Announcements. . . . . . . . . . . 23
Careers ................. 21
Classified Ads ............ 19
Lawddities............... 10
Names in the News......... 4
Weekly Digest............ 17
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Clarification
In a story on pages 1-5 of the
Nov. 11 issue of The Lawyers
Weekly, the Supreme Court of
Canada held that the B.C. Human
Rights Tribunal acted patently
unreasonably when it stepped in
to hear the case of three injured
workers who claimed they were
being discriminated against
because of their chronic pain,
after their human rights complaints had already been rejected
by the internal appeal review division of the Workers Compensation Board.
Incomplete information appeared in the original story.
