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R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86

 

Mohamed Ameerulla Khan                                                                             Appellant

 

v.

 

Her Majesty The Queen                                                                               Respondent

 

Indexed as:  R. v. Khan

 

Neutral citation:  2001 SCC 86.  

 

File No.:  27395.

 

2000:  December 12; 2001:  December 7.

 

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Binnie, Arbour and LeBel JJ.

 

on appeal from the court of appeal for manitoba

 

Criminal law -- Appeals -- Powers of court of appeal --  Error of law -- Miscarriage of justice --  Curative proviso --  Whether trial judge erred in refusing to order mistrial where jury was provided with transcripts containing submissions made in absence of jury -- Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) .

 


After a trial before a judge and jury, the accused was convicted of the first degree murder of his wife.  During the course of its deliberations, the jury requested transcripts of the pathologist’s testimony.  Approximately six and a half hours after the transcripts were delivered to the jury, defence counsel discovered that the copy of the transcript given to the jury inadvertently contained the record of matters discussed in the absence of the jury during a voir dire.  As such matters should have been expunged, defence counsel moved for a mistrial on the basis that the proceedings had become tainted and the trial was unfair.  The defence argued that the jury had learned that the accused had made comments that were ruled inadmissible.  In the defence’s view, the jury would speculate as to those comments and would draw an adverse inference against the accused.  The trial judge denied the request for a mistrial.  The offending transcripts were retrieved and the jury was provided with clean copies.  The trial judge cautioned the jury that they were to rely solely on the evidence that was put before them.  Once the jury returned a guilty verdict of first degree murder, the trial judge requested further submissions regarding the possibility of granting a mistrial.  After submissions by both counsel, the trial judge again declined to declare a mistrial.  The accused’s appeal to the Court of Appeal was dismissed.

 

Held:  The appeal should be dismissed.

 

Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Binnie and Arbour JJ.:  The question in this case is not whether the giving of the unedited transcripts to the jury was a miscarriage of justice or a procedural irregularity, but whether the trial judge made an error of law in refusing to declare a mistrial.

 


Apart from unreasonable verdict cases, most appeals against conviction are based on errors of law within the meaning of s. 686(1) (a)(ii) of the Criminal Code .  In some cases, when the court has concluded that the error alleged was at most an error of mixed fact and law, it has characterized the issue as falling under s. 686(1) (a)(iii), that is, a miscarriage of justice.  In such a case, further use of the proviso in s. 686(1) (b)(iii) is obviously precluded and the appeal must be allowed.  The appeal in this case is entirely governed by the provisions of ss. 686(1) (a)(ii) and 686(1) (b)(iii).  There are essentially two classes of errors that have led to a proper application of the curative proviso: “harmless errors”, or errors of a minor nature having no impact on the verdict; and serious errors that would justify a new trial but for the fact that the evidence was so overwhelming that no substantial wrong or miscarriage of justice occurred despite the error.  In every case, if the reviewing court concludes that the error led to a denial of a fair trial, the court may properly characterize the matter as one where there was a miscarriage of justice, in which case no remedial provision is available and the appeal must be allowed.

 


This case does not require an assessment of the overall strength of the Crown’s case at trial.  When asked to declare a  mistrial, the trial judge was essentially asked whether it was likely that the exposure by the jury to the tainted transcripts could have affected the jury to the point that the entire trial was compromised and that no remedy other than a new trial was available.  Read in full, the offending passage in the transcripts handed to the jury refers to several matters that were not in evidence  when the argument took place in the absence of the jury.  A fair assessment of the impact that the transcript could have had on the jury must be made on the assumption that the jury read the transcript and understood that counsel for the accused was concerned that the jury should not find out that his client had made statements that the court had ruled inadmissible.  This is how the trial judge approached the issue, and that is why she cautioned the jury as she did.  She did not identify specifically the impugned passages, so as not to aggravate the damage, if any, but she clearly instructed the jury to disregard any references to matters that were not properly in evidence before them.  The trial judge was obviously concerned with the effect and consequences  of what had transpired and she took seriously the application for a mistrial.  However, she made no error when she exercised her discretion to deny the motion for a mistrial, nor did she err in declining to enter a mistrial after the jury had returned its verdict.  The trial judge was in a privileged position to assess the possible impact of the mishap on the jury, and the effectiveness of the sharp warning that she issued.  There is no basis upon which it could be said that she was wrong in that judgment call.  The information before the jury was at most an innuendo.  Taking the case at its highest from the accused’s point of view, the admonition issued by the trial judge to the jury was sufficient to remedy any ill effect that the unedited transcripts might have had on the jury.  As the trial judge did not err in rejecting the motion for a mistrial, there is no need to turn to the proviso.

 


Per LeBel J.:  The question before this Court is whether the conviction should be reversed because either an “error of law” or a “miscarriage of justice” has occurred and, if so, whether the curative proviso should be applied.  In order for a verdict to be reversed under s. 686(1)(a)(ii) of the Code, it is not sufficient to demonstrate that a legal mistake has occurred.  The judgment must have been based or possibly based on that mistake, so as to prejudice the accused.  The other situations that may justify the intervention of a court of appeal fall into a residual category.  Section 686(1)(a)(iii) refers to miscarriages of justice, which cover irregularities other than the errors of law mentioned in s. 686(1)(a)(ii) and which may have rendered the trial unfair or created the appearance of unfairness for the accused.  Although ss. 686(1)(a)(ii) and 686(1)(a)(iii) are distinct, they are nevertheless closely related.  Both involve situations where an irregularity has occurred during the course of the trial.  Whether the defect at trial appears to have been an error of law or an irregularity falling within the residual category of  miscarriage of justice, the circumstances must be considered to see if the error was merely peripheral or could have played a significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance.  If the error of law could not have prejudiced the accused, the conviction will be upheld.  Reaching a conclusion in that respect will require a balancing taking into account the circumstances of the case and, more particularly, the nature and impact of the error of law.  In that regard, the analysis under s. 686(1)(a)(ii) may call upon similar considerations as under s. 686(1)(a)(iii).

 


An irregularity can be said to constitute  a miscarriage of justice when the irregularity was severe enough to render the trial unfair or create the appearance of unfairness.  Contrary to the analysis under the proviso, the emphasis is not so much on the final verdict and the overall strength of the evidence against the accused, but rather on the gravity of the irregularity and the effect it may have had on the fairness, or appearance of fairness, of the trial.  The gravity of irregularities which may occur must inevitably be evaluated by courts on a case‑by‑case basis.  This being said, certain elements can provide reference points in determining whether a miscarriage of justice has occurred.  First, one should ask whether the irregularity pertained to a question that was central to the case against the accused.  An irregularity that is related to a central point of the case is more likely to be fatal than one concerning a mere peripheral point.  Second, the court of appeal should consider the relative gravity of the irregularity: how much influence it could have had on the verdict; the chances that the apprehended detrimental effect of the irregularity did in fact occur; and the likely severity of these detrimental effects on the accused’s case.  When the court considers the gravity of the error, it should also consider the possible cumulative effect of several irregularities during the trial.  Third, one should be mindful of whether the trial was by jury or by a judge sitting alone.  Sometimes, irregularities can have a more severe impact on the fairness of the trial when they occur during a trial before a judge and a jury.  Fourth, one should ask whether the irregularity may have been remedied, in full or in part, at the trial.  Fifth, the effect of the irregularity on the fairness of the trial and the appearance of fairness should be considered.  Sixth, the attitude of defence counsel if and when he was confronted with the irregularity may have an impact.  If defence counsel had an opportunity to object to the irregularity and failed to do so, this militates in favour of finding that the trial was not unfair. 

 

The second stage of the analysis is the applicability of the curative proviso. In order to invoke s. 686(1)(b)(iii) successfully, the Crown must demonstrate that any reasonable judge or jury would have rendered the same verdict.  Even though an important error of law could have influenced the decision, it would not be appropriate to reverse the conviction when the evidence is so overwhelming against the accused that it would inevitably lead to the same result.  Similarly, when the court of appeal finds that the evidence against the accused would inevitably have led to the same result, it can uphold a conviction despite having found that a procedural irregularity not amounting to a miscarriage of justice had occurred.  Regardless of whether the proviso is used to cure an error of law or a procedural irregularity not amounting to a miscarriage of justice, it may be used only when the conviction was inevitable.

 


The leak of the tainted transcript to the jury was certainly an error or an irregularity.  This mistake does not seem to be in the nature of an error of law.  The judge did not make a decision on a question of law that was among the bases of a conviction.  The error was more akin to a procedural irregularity that happened by accident.  Thus, as this case does not seem to fall squarely within the error of law category, this becomes a matter to be examined under the residual category of procedural irregularity.  The irregularity did not amount to a miscarriage of justice.  First, it did not relate to a point that was particularly central in law or in fact to the case against the accused.  Second, the irregularity was not of significant importance.  The fact that the trial was held before a judge and jury militates in favour of a finding of unfairness.  However, all doubts concerning the unfairness or appearance of unfairness of the trial are put to rest when the remedy chosen by the judge when she realized that the tainted transcripts had been leaked to the jury is considered.

 

Since no miscarriage of justice occurred, it is unnecessary to examine whether the conviction could be saved under the curative proviso.

 

Cases Cited

 

By Arbour J.

 


Referred to:  Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Cloutier (1988), 43 C.C.C. (3d) 35; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Fenton (1984), 11 C.C.C. (3d) 109; R. v. Karpinski, [1957] S.C.R. 343; R. v. Simons (1976), 30 C.C.C. (2d) 162; R. v. Sarazin (1978), 39 C.C.C. (2d) 131; R. v. Dwyer, [1980] 1 S.C.R. 481, rev’g (1978), 42 C.C.C. (2d) 83; Brodie v. The King, [1936] S.C.R. 188; R. v. Vallee, [1969] 3 C.C.C. 293; R. v. Major, [1977] 1 S.C.R. 826; R. v. Côté, [1978] 1 S.C.R. 8; Elliott v. The Queen, [1978] 2 S.C.R. 393; Kipp v. Attorney‑General for Ontario, [1965] S.C.R. 57; R. v. Sheets, [1971] S.C.R. 614; R. v. Meunier, [1966] S.C.R. 399; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Trenholm v. Attorney‑General of Ontario, [1940] S.C.R. 301; Doyle v. The Queen, [1977] 1 S.C.R. 597; R. v. Krannenburg, [1980] 1 S.C.R. 1053; R. v. Joinson (1986), 32 C.C.C. (3d) 542; Bell (Re), [1988] B.C.J. No. 1897 (QL); Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. B. (L.C.) (1996), 104 C.C.C. (3d) 353; R. v. Silvini (1991), 68 C.C.C. (3d) 251; R. v. Cameron (1991), 64 C.C.C. (3d) 96; Colpitts v. The Queen, [1965] S.C.R. 739; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Bevan, [1993] 2 S.C.R. 599; Chibok v. The Queen (1956), 24 C.R. 354; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. MacGillivray, [1995] 1 S.C.R. 890; R. v. Haughton, [1994] 3 S.C.R. 516; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Gunn v. The Queen, [1974] S.C.R. 273; R. v. Klatt (1994), 94 C.C.C. (3d) 147; R. v. Wong (1992), 12 B.C.A.C. 211; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Nijjar, [1998] 1 S.C.R. 320; Alward v. The Queen, [1978] 1 S.C.R. 559; Ambrose v. The Queen, [1977] 2 S.C.R. 717; Dufresne v. La Reine, [1988] R.J.Q. 38; R. v. Welch (1980), 5 Sask. R. 175.

 

By LeBel J.

 


Referred to:  R. v. Duke (1985), 22 C.C.C. (3d) 217; R. v. Watson (1991), 4 B.C.A.C. 253; R. v. Armstrong, [1970] 1 C.C.C. 136; R. v. R. (R.) (1994), 91 C.C.C. (3d) 193; Emkeit v. The Queen, [1974] S.C.R. 133; R. v. Paterson (1998), 102 B.C.A.C. 200; R. v. Cameron (1991), 64 C.C.C. (3d) 96; Fanjoy v. The Queen, [1985] 2 S.C.R. 233; R. v. Joanisse (1995), 102 C.C.C. (3d) 35; R. v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. G. (S.G.), [1997] 2 S.C.R. 716; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Hertrich (1982), 67 C.C.C. (2d) 510; Olbey v. The Queen, [1980] 1 S.C.R. 1008; Cathro v. The Queen, [1956] S.C.R. 101; R. v. Ferguson (2000), 142 C.C.C. (3d) 353, rev’d [2001] 1 S.C.R. 281, 2001 SCC 6; R. v. Martineau (1986), 33 C.C.C. (3d) 573; R. v. Lessard (1992), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205; R. v. Taillefer (1995), 100 C.C.C. (3d) 1, 40 C.R. (4th) 287; R. v. Siu (1998), 124 C.C.C. (3d) 301; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Corbett, [1988] 1 S.C.R. 670; Imrich v. The Queen, [1978] 1 S.C.R. 622; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22; R. v. Terceira (1998), 123 C.C.C. (3d) 1, aff’d [1999] 3 S.C.R. 866; R. v. P. (G.) (1996), 112 C.C.C. (3d) 263; R. v. Chambers, [1990] 2 S.C.R. 1293; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. Cleghorn, [1995] 3 S.C.R. 175; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. S. (P.L.), [1991] 1 S.C.R. 909; Meunier v. The Queen (1965), 48 C.R. 14, aff’d [1966] S.C.R. 399; R. v. Cloutier (1988), 43 C.C.C. (3d) 35; R. v. Simard (1989), 36 Q.A.C. 74; R. v. Fabre (1990), 46 Q.A.C. 133; R. v. Deyardin (1997), 119 C.C.C. (3d) 365, [1997] R.J.Q. 2367; Primeau v. La Reine, [2000] R.J.Q. 696; Taillefer v. La Reine, [1989] R.J.Q. 2023.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, s. 440.1 [now s. 485].

 

Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)  [am. c. 27 (1st Supp.), s. 145; am. 1991, c. 43, s. 9 (Sch., item 8)].

 

Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 145.

 

Authors Cited

 

Béliveau, Pierre, et Martin Vauclair.  Traité général de preuve et de procédure pénales, 8e éd.  Montréal: Thémis, 2001.

 

Cohen, Stanley A.  “Controlling the Trial Process: The Judge and the Conduct of Trial” (1977), 36 C.R.N.S. 15.

 

Ewaschuk, E. G.  Criminal Pleadings & Practice in Canada, vol. 2, 2nd ed.  Aurora, Ont.:  Canada Law Book, 1987 (loose‑leaf updated August 2001, release 49).

 

McKinnon, Gil D.  The Criminal Lawyers’ Guide to Appellate Court Practice.  Aurora, Ont.: Canada Law Book, 1997.

 


Mewett, Alan W. “No Substantial Miscarriage of Justice”.  In Anthony N. Doob and  Edward L. Greenspan, eds., Perspectives in Criminal Law.  Aurora, Ont.: Canada Law Book, 1985, 81.

 

Price, Ronald R., and Paula W. Mallea. “‘Not by Words Alone’: Criminal Appeals and the No Substantial Wrong or Miscarriage of Justice Rule”.  In Vincent M. Del Buono, ed., Criminal Procedure in Canada. Toronto: Butterworths, 1982, 453.

 

APPEAL from a judgment of the Manitoba Court of Appeal (1999), 138 Man. R. (2d) 23, 202 W.A.C. 23, [1999] 10 W.W.R. 207, 136 C.C.C. (3d) 391, [1999] M.J. No. 278 (QL), dismissing the accused’s appeal from his conviction for first degree murder.  Appeal dismissed.

 

Martin D. Glazer, for the appellant.

 

Richard A. Saull, for the respondent.

 

The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Major, Binnie and Arbour JJ. was delivered by

 

Arbour J. --

 

I.  Introduction

 

1                                   My colleague Justice LeBel has reviewed the relevant facts in his reasons.  I only find it necessary to expand slightly on the facts surrounding the central issue before us in this appeal.

 


2                                   A few hours after the jury began its deliberations in this murder case, it requested transcripts of proceedings to review the evidence of certain witnesses. Neither counsel nor the trial judge realized at that time that the transcripts in question had not been edited to delete submissions that had been made in the absence of the jury.  The jury was in possession of these unedited transcripts for approximately six and a half hours until defence counsel became aware of the content of the transcripts and informed the court of the problem.

 

3                                   The jury was provided with a total of approximately 350 pages containing the evidence of four different witnesses.  In an early portion of the transcripts, in the course of the direct examination of Dr. MacDonald, defence counsel indicated that he had certain objections to make and that it should be dealt with in the absence of the jury.  The record then indicates that the jury was asked to retire.  Immediately after that entry, the transcript reveals as follows:

 

THE COURT:  Yes.  Was that your concern?

 

MR. GLAZER:  No.  My concern -- I might as well deal with it now -- is that I hope my friend isn’t going to ask this witness to reveal hearsay that he relied on that has not been tendered as evidence in court because that would be inadmissible.  For example, if certain photographs are not filed and the witness says he’s basing his opinion on photographs that haven’t been filed, that is inadmissible.  If he says that he’s basing his opinion based on temperature he believes was taken, but that temperature was not filed as an exhibit or tendered as evidence in the trial, then, the jury has to be told to disregard that.

 

THE COURT: That ultimately -- I mean I don’t know what is coming from the Crown, but certainly the doctor is entitled to say what it was that he used to form his opinion and if the underpinnings are not subsequently proven to support his opinion, that that’s --

 

MR. GLAZER:  I beg to disagree, My Lady.  The law as I understand it is -- for example, My Lady had ruled that certain comments by the accused are inadmissible.  If the witness during the course of his testimony refers to those comments as forming the basis of some of his opinion, it would be grounds for a mistrial.  He can only refer to what is before the jury; he can’t refer to evidence that is not before the jury. [Emphasis added.]

 


4                                   Immediately after the transcripts were retrieved from the jury, defence counsel moved for a mistrial.  On that occasion, he did not object in particular to the portion of the transcript quoted above.  Rather, he referred to information on the voir dire that made reference to a prior trial.  Having heard the submissions, the trial judge ruled as follows:

 

Well, at this stage of the proceedings, what I propose to do, and I appreciate your comments and I share the concern that you have expressed, but at the same time, we’ve gone to this stage, and what I propose to do is to bring the jury in and to indicate and not to red flag whose transcript and not to indicate what areas but simply to say that there were some matters in the transcripts that were not properly before them and ought not to form part of their consideration and to caution them on that and to indicate, again, that only evidence that was properly before them is to be considered; and, in addition, to indicate that we will keep all of the transcripts here until we’re in a position to provide them with clean copies of exactly what was before them.

 

5                                   After the jury returned a verdict of guilty the trial judge asked the jury to retire so she could talk to counsel alone.  After the jury left, the judge indicated that before formally recording the verdict, she wanted to raise the matter of the transcripts that were sent inadvertently to the jury during their deliberations.  She said that she was still entertaining the possibility of declaring a mistrial at this stage and would like to hear the submissions of counsel on that issue.  In the course of these submissions, defence counsel referred to the passage quoted above as an indication that the jury could only have assumed that his client had made a confession “or something of that nature”.  Having heard the submissions, the trial judge concluded that she was not certain that she had jurisdiction to declare a mistrial after a verdict had been rendered by the jury.  Then, she indicated “with some reluctance” that she would bring the jury back.  At the request of the defence, the jury was polled and confirmed the verdict.

 


6                                   The issue before us is to characterize properly this ground of appeal, within the meaning of s. 686  of the Criminal Code, R.S.C. 1985, c. C-46 , and to decide how it should affect the ultimate disposition of the appeal.

 

7                                   In my view, if the unedited transcript mistake had not been detected until after the trial, it might have been possible to view this ground of appeal as falling under s. 686(1) (a)(iii).  However, this matter was raised at trial, and the possibility of a mistrial was considered by the trial judge on two occasions.  A proper characterization of the issue before us, in my opinion, is whether or not the trial judge made an error of law in refusing to declare a mistrial either when it was first requested of her, or after the verdict.  If we find that an error of law was committed, we must then turn to the remedial proviso in s. 686(1) (b)(iii) and determine whether, notwithstanding the error, the appeal should be dismissed on the basis that no substantial wrong or miscarriage of justice has occurred.

 

8                                   This method of analysis has been consistently followed by appellate courts and by this Court in determining the nature of errors that are alleged to have occurred at trial, and the proper remedial response mandated by the Criminal Code .  This is also the approach that was followed by the Manitoba Court of Appeal in the present case.

 

9                                   In my view, the question in this case is not whether the giving of the unedited transcripts to the jury was a “miscarriage of justice” or a “procedural irregularity”.  The question is whether or not the trial judge erred in law by not declaring a mistrial as a result of that occurrence. As a preliminary matter, I will therefore set out in more detail why, in my view, s. 686(1) (b)(iv) has no application here. I will then review the guiding principles in s. 686(1) (a)(ii) and 686(1) (b)(iii).

 


II.  Relevant Statutory Provisions

 

10                               Criminal Code, R.S.C. 1985, c. C-46 

 

686. (1)  On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

 

(a) may allow the appeal where it is of the opinion that

 

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

 

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

 

(iii) on any ground there was a miscarriage of justice;

 

(b) may dismiss the appeal where

 

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

 

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

 

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; or

 

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

 

III.  Analysis

 

A.   Section 686(1)(b)(iv) of the Criminal Code 

 


11                               Properly interpreted in accordance with the principles set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, this subsection expands the remedial powers of courts of appeal by permitting the dismissal of appeals in case of any procedural irregularity previously perceived as having caused a loss of jurisdiction at trial, as long as the accused suffers no prejudice and as long as the trial court maintained its jurisdiction “over the class of offence[s]”.  I agree with the analysis of the scope of the section provided by Goodman J.A. in R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.), and adopted by Gonthier J. in R. v. Bain, [1992] 1 S.C.R. 91 (in dissent, with Iacobucci J. and McLachlin J., as she then was, concurring).  In Cloutier, Goodman J.A. reviewed the legislative history of the provision and noted that it was first initiated in the House of Commons on February 7, 1984, to be eventually enacted and proclaimed into force on December 4, 1985.  The section was first introduced in the House seven days after a January 31, 1984 judgment of the British Columbia Court of Appeal in R. v. Fenton (1984), 11 C.C.C. (3d) 109, which deplored the unavailability of curative provisions in the Code in the case of jurisdictional errors such as those caused by the accused having been even inadvertently excluded from small and sometimes uneventful portions of his trial.

 

12                               Although Goodman J.A. suggested that the section might have been enacted in response to the line of cases leading to Fenton, supra, it is not clear to me that the section targeted exclusively the procedural irregularity caused by the absence of the accused during his trial.  There were numerous other procedural irregularities  in the criminal process which caused loss of jurisdiction over the person, if not over the offence with which the accused was charged. The real focus of the enactment of s. 686(1)(b)(iv) in 1985 seems to have been to put an end to the jurisprudence holding that  procedural errors having caused a loss of jurisdiction in the trial courts could not be cured, even on appeal.


 

13                               Indeed, prior to the enactment of the Canadian Charter of Rights and Freedoms , criminal procedure was replete with complex decisions distinguishing between the various jurisdictional consequences of procedural errors, pre-trial, at trial and post-conviction.  Such issues included: whether the expiration of a time limitation within which to prosecute an offence summarily provided a defence or caused a loss of jurisdiction (R. v. Karpinski, [1957] S.C.R. 343); issues of territorial jurisdiction (R. v. Simons (1976), 30 C.C.C. (2d) 162 (Ont. C.A.); R. v. Sarazin (1978), 39 C.C.C. (2d) 131 (P.E.I.S.C.)); jurisdictional challenges to the preliminary inquiry through prerogative writs, as well as challenges to the form of the information or indictment (R. v. Dwyer, [1980] 1 S.C.R. 481, rev’g (1978), 42 C.C.C. (2d) 83 (Ont. C.A.)); whether defective indictments could not or would not be cured on appeal (Brodie v. The King, [1936] S.C.R. 188); whether informations or indictments “disclos[ing] no offence known to the law” were curable on appeal (R. v. Vallee, [1969] 3 C.C.C. 293 (B.C.C.A.), at p. 295; R. v. Major, [1977] 1 S.C.R. 826; R. v. Côté, [1978] 1 S.C.R. 8, and Elliott v. The Queen, [1978] 2 S.C.R. 393); and, whether remedies such as prerogative writs and appeals were available to review rulings on the alleged improper form of the charge (Kipp v. Attorney-General for Ontario, [1965] S.C.R. 57.  See also R. v. Sheets, [1971] S.C.R. 614.)

 


14                               In addition to the cases dealing with the jurisdictional consequences of violating s. 650  of the Criminal Code , mandating the presence of the accused at trial (see R. v. Meunier, [1966] S.C.R. 399, and R. v. Barrow, [1987] 2 S.C.R. 694), there were many other procedural irregularities which were said to be of a jurisdictional nature -- rather than mere “errors of law” -- and as such raised the question of whether they could be remedied on appeal by the use of the proviso contained in s. 686(1) (b)(iii).  (See for instance irregularities in jury selection, R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), or the discussion of the effects of errors in the procedure by which the accused elected his mode of trial in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41.)  The matter was further complicated by the distinction drawn by the courts between loss of jurisdiction over the person of the accused, which could be subsequently remedied, and loss of jurisdiction over the offence, which could not (see Trenholm v. Attorney-General of Ontario, [1940] S.C.R. 301; Doyle v. The Queen, [1977] 1 S.C.R. 597; R. v. Krannenburg, [1980] 1 S.C.R. 1053).

 

15                               This question of incurable loss of jurisdiction was first addressed by Parliament in 1976 by the enactment of s. 440.1 of the Criminal Code, R.S.C. 1970, c. C-34, which eventually, after further amendment, became the present s. 485 .  The original section cured only failures to comply with the Code’s provisions on adjournments and remands, which were already a great source of “loss of jurisdiction”. Indeed, prior to the enactment of that provision, jurisdiction could be lost by remands for more than eight days without the accused’s consent.  Yet this Court in Krannenburg, supra, at p. 1056, held that the new section still could not cure a “[l]oss of jurisdiction over the offence”.  In 1985, in the same Bill enacting s. 686(1) (b)(iv), s. 440.1 was further amended to its present form.  The parallels between s. 686(1) (b)(iv) and s. 485  of the Criminal Code  were highlighted by Macfarlane J.A. in R. v. Joinson (1986), 32 C.C.C. (3d) 542 (B.C.C.A.), at p. 548, and by Shaw J. in  Bell (Re), [1988] B.C.J. No.1897 (QL) (S.C.).  Section 485  now provides that jurisdiction over an offence is not lost by reason of the failure of the trial court to “act in the exercise of that jurisdiction at any particular time, or by reason of a failure to comply with any of the provisions of this Act respecting adjournments or remands”.

 


16                               In short, s. 686(1)(b)(iv) of the Code was enacted in the face of a body of case law that was becoming increasingly technical and complex and which had restricted considerably the possibility for appellate courts to conclude that an error at trial was not such that it required a setting aside of the verdict.  This provision is rarely invoked, because procedural irregularities that result from an error of law, which is most of them, are properly dealt with under s. 686(1)(b)(iii) of the Code.  Prior to the enactment of s. 686(1) (b)(iv) in 1985, some procedural irregularities, although they amounted to errors of law, had been ruled “jurisdictional” and courts had decided that they could therefore not be cured by the proviso since jurisdiction had been lost.  In that context, it is clear that the new provision was not meant to deal with trivial procedural irregularities which in any event would have been curable under the proviso as long as they constituted errors of law.  I agree with Goodman J.A. in Cloutier that s. 686(1) (b)(iv) was enacted to cure serious procedural irregularities, otherwise amounting to errors of law, in cases where under the then existing case law, jurisdiction over the person, but not over the offence, had been lost.  I also agree with Goodman J.A. that under this new subparagraph, since the procedural irregularities in issue would have been serious ones, it is appropriate to infer prejudice without requiring in every case that the accused demonstrate prejudice.  The inference may of course be rebutted and the test of prejudice under that subsection should be the same as the no substantial wrong or  miscarriage of justice, under s. 686(1) (b)(iii), which has been the subject of extensive pronouncement by this Court.

 


17                               Finally, in my view, if an issue is raised on appeal that cannot be said to constitute an error of law, there is no access to the remedial provisions of s. 686(1) (b).  In such a case, the court must determine whether the appeal should be allowed “on any ground [that] there was a miscarriage of justice” under s. 686(1) (a)(iii).  If the error alleged is one of mixed fact and law, it may have to be dealt with under s. 686(1) (a)(iii) (see Fanjoy v. The Queen, [1985] 2 S.C.R. 233).  If an accused were to complain on appeal of having been deprived of the effective assistance of counsel, when the issue had not been raised at trial and therefore the trial judge had made no ruling on it, it could be said that no error of law is alleged, but that the appeal should be allowed on the ground that there was a miscarriage of justice (R. v. B. (L.C.) (1996), 104 C.C.C. (3d) 353 (Ont. C.A.); R. v. Silvini (1991), 68 C.C.C. (3d) 251 (Ont. C.A.)).  In the same way, if the complaint on appeal was of improper contact between a juror and the accused discovered after the verdict (see R. v. Cameron (1991), 64 C.C.C. (3d) 96 (Ont. C.A.)), the ground of appeal would be based on s. 686(1) (a)(iii).  In such cases, a finding of miscarriage of justice under s. 686(1) (a)(iii) cannot in my view be cured under any of the remedial provisions contained in s. 686(1) (b) and the appeal must be allowed.

 

18                               In summary, when an error or irregularity of a procedural nature has occurred at trial, s. 686  provides that:

 

-      If the procedural irregularity amounts to or is based on an error of law, it falls under ss. 686(1) (a)(ii) and 686(1) (b)(iii).

 

-      If the procedural irregularity was previously (before 1985) classified as an irregularity causing a loss of jurisdiction: s. 686(1) (b)(iv) provides that this is no longer fatal to the conviction, and an analysis of prejudice must be undertaken, in accordance with the principles set out in s. 686(1) (b)(iii).

 


-      If the procedural error did not amount to, or originate in an error of law, which is rare, s. 686(1) (a)(iii) applies and the reviewing court must determine whether a miscarriage of justice occurred.  If so, there are no remedial provisions in s. 686(1) (b) that can cure such a defect, and the appeal must be allowed and either an acquittal entered or a new trial ordered.

 

19                               There is no suggestion in this case that the handing of the unedited transcripts to the jury was an irregularity that triggered a loss of jurisdiction over the person of the accused.  Therefore, in my opinion s. 686(1) (b)(iv) has no application.  Rather, what the appellant alleges is that the trial judge erred in law in refusing to declare a mistrial.  We must analyse this argument under the more common route of determining whether that refusal was an error, and if so, whether it is curable under the proviso in s. 686(1) (b)(iii).

 

B.  Sections 686(1) (a)(ii) and 686(1) (b)(iii)

 

20                               I must say at the outset that I disagree, with the greatest respect, with the interpretation that my colleague LeBel J. gives to s. 686(1)(a)(ii) which would restrict the concept of error of law to an error on which the judgment was or could have been based so as to prejudice the accused.  I am not aware of any authority which has restricted the concept of error of law in that fashion, and I am not persuaded that it is mandated by the textual reading of the section either in French or in English.  In fact, in both languages, s. 686(1)(a) distinguishes between “verdict” and “judgment”.  In s. 686(1)(a)(i), the Code provides that the appeal may been allowed if “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence” (emphasis added).  In French, the word “verdict” is used in that subparagraph.

 


21                               In contrast, in s. 686(1)(a)(ii) the Code provides that the appeal may be allowed if  “the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law” (emphasis added).  In French the word “jugement” is also used in that section.

 

22                               In my opinion, even a textual interpretation supports the view that the judgment based on an error of law need not be linked to the final verdict but can be any decision, obviously having contributed to the ultimate verdict as they all do, that was an erroneous interpretation or application of the law.

 

23                               I see no authority to support the notion that only errors of law containing an element of unfairness or prejudice would constitute errors of law in that context.  The determination of whether the error of law was prejudicial to the accused, and if so to what extent, is an analysis traditionally reserved for, and rightly so, the remedial proviso in s. 686(1)(b)(iii), with the burden then appropriately placed on the Crown to satisfy the reviewing court that despite the error no substantial wrong or miscarriage of justice has occurred.

 

24                               I will only refer briefly to some of the abundant jurisprudence under s. 686 of the Code in order to establish the parameters of the application both of paras. (a) and (b) of s. 686(1).  Nothing needs to be said in this case about s. 686(1)(a)(i), which outlines the power of the court of appeal to allow an appeal on the basis that the verdict is unreasonable or cannot be supported by the evidence.            

 


25                               Apart from unreasonable verdict cases, it is fair to say that most matters that are brought as grounds of appeal against conviction in criminal cases are characterized as errors of law within the meaning of s. 686(1) (a)(ii).  In some cases, when the court has concluded that the error alleged was not strictly speaking an error of law, but at most an error of mixed fact and law, it has characterized the issue as falling under s. 686(1) (a)(iii), that is, whether it was a miscarriage of justice. In such a case, further use of the proviso is obviously precluded and the appeal must be allowed. (See Fanjoy, supra.)  As indicated earlier, I believe that the appeal in this case is entirely governed by the provisions of ss. 686(1) (a)(ii) and 686(1) (b)(iii) of the Criminal Code , and that ss. 686(1) (a)(iii) and 686(1) (b)(iv) are not engaged.

 

26                               Most of the case law dealing with the nature of the error of law contemplated by s. 686(1) (a)(ii) arises in the context of the curative proviso which brings about an assessment of the nature and the seriousness of the error.  There are essentially two classes of errors which have been identified by reviewing courts and which have led to a proper application of the proviso.  The first category is that of so- called “harmless errors”, or errors of a minor nature having no impact on the verdict.  The second category encompasses serious errors which would justify a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice.

 

27                               In every case, if the reviewing court concludes that the error, whether procedural or substantive, led to a denial of a fair trial, the court may properly characterize the matter as one where there was a miscarriage of justice.  In that case, no remedial provision is available and the appeal must be allowed.  I will now examine  these propositions in more detail.

 


28                               This Court has enunciated on numerous occasions the proper test for the application of the curative proviso (see Colpitts v. The Queen, [1965] S.C.R. 739; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Bevan, [1993] 2 S.C.R. 599).  It can only be applied where there is no “reasonable possibility that the verdict would have been different had the error . . . not been made” (Bevan, supra, at p. 617).

 

29                               The jurisprudence reveals that the proviso will generally be applied, in accordance with the above principles, in two types of situations.  A. W. Mewett has described the two possible approaches in “No Substantial Miscarriage of Justice”, in A. N. Doob and E. L. Greenspan, eds., Perspectives in Criminal Law (1985), 81, at p. 94:

 

What we see are again two fundamentally different views of the application of the proviso.  One view proceeds on the basis of asking whether, absent the error or wrongly admitted evidence, the rest of the evidence is so overwhelming as to make the outcome of a retrial a virtual certainty; the other of asking whether, ignoring the rest of the evidence, the jury might have been influenced by the error or the wrongly admitted evidence. 

 

On the one hand, appellate courts will maintain a conviction in spite of the errors of law where such errors were either minor in themselves or had no effect on the verdict and caused no prejudice to the accused.  This accords with the original purpose of the section, as described early on by Taschereau J., writing for the majority of this Court, in Chibok v. The Queen (1956), 24 C.R. 354, at p. 359:

 

It would indeed be a shocking impediment to the proper administration of criminal justice, if criminals were allowed to go free because of a trivial error in law or of an oversight of no material consequence. [Emphasis added.]

 


As stated by Lamer C.J., for the Court, in R. v. Tran, [1994] 2 S.C.R. 951, at p. 1008, “[s]ection 686(1)(b)(iii) is designed to avoid the necessity of setting aside a conviction for minor or ‘harmless’ errors of law where the Crown can establish that no substantial wrong or miscarriage of justice has occurred.”

 

30                               The case law is replete with examples of situations where either the triviality of the error itself, or the lack of prejudice caused by a more serious error of law, justified the application of the curative proviso (see R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. MacGillivray, [1995] 1 S.C.R. 890; R. v. Haughton, [1994] 3 S.C.R. 516; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Gunn v. The Queen, [1974] S.C.R. 273; Chibok, supra; R. v. Klatt (1994), 94 C.C.C. (3d) 147 (Alta. C.A.); R. v. Wong (1992), 12 B.C.A.C. 211).  In all  those cases, the appellate courts were convinced that the error could have had no effect on the verdict.  Because of the nature of the errors and of the issues with respect to which they were made, it was possible to trace their effect on the verdict and ensure that they made no difference.  Generally, the errors concerned evidence that was insignificant to the determination of guilt or innocence (Gunn, supra; Wong, supra; United Nurses, supra; Klatt, supra) or benefited the accused by imposing a more onerous standard on the Crown (MacGillivray, supra; Haughton, supra).  Errors in the charge to the jury respecting a very minor aspect of the case that could not have had any effect on the outcome or concerning issues that the jury was otherwise necessarily aware of were also cured by the application of the proviso (Jacquard, supra; Jolivet, supra; Ménard, supra; Chibok, supra).  Similarly, in some cases the errors concerned preliminary findings that would nevertheless, as a matter of law, inevitably have resulted in the same finding made by the trial judge (Rockey, supra; Stone, supra). 

 


31                               In addition to cases where only a minor error or an error with minor effects is committed, there is another class of situations in which s. 686(1) (b)(iii) may be applied.  This was described in the case of R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916, where, after stating the rule that an accused is entitled to a new trial or an acquittal if errors of law are made, Sopinka J. wrote:

 

There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict.  In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction.

 

Therefore, it is possible to apply the curative proviso even in cases where errors are not minor and cannot be said to have had only a minor effect on the trial, but only if it is clear that the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible (see R. v. Nijjar, [1998] 1 S.C.R. 320; Alward v. The Queen, [1978] 1 S.C.R. 559; Ambrose v. The Queen, [1977] 2 S.C.R. 717; Dufresne v. La Reine, [1988] R.J.Q. 38 (C.A.); R. v. Welch (1980), 5 Sask. R. 175 (C.A.)).

 

C.  Application to this Case

 

32                               This case in my view does not require an assessment of the overall strength of the Crown’s case at trial.  Here, when asked to declare a mistrial, the trial judge was essentially asked the same question as the one before us, that is, whether it was likely that the exposure by the jury to the tainted transcripts could have affected the jury to the point that the entire trial was compromised and that no remedy other than a new trial was available.

 


33                               I think that for the purpose of this appeal, we must assume that the jury read the transcript that it had in its possession, including the impugned passage.  It would of course be easy to dismiss the appeal on the assumption that the jury probably never read the portion that it should not have received. Such an approach would, in my opinion, be totally unfounded. The jury asked for some materials, and it received them. They had the transcripts for several hours. It would be bizarre in my view to assume that having asked for the transcripts, they did not read them. Moreover, the part that should not have been given to them stood out in the transcript with the heading: “JURY OUT AT 11:38 A.M.”  That might have attracted their attention.  In any event, as a matter of law, I cannot see how speculation helps either way.  We must assume that there was at least a real possibility that the jury was exposed to these materials and at this stage we cannot probe further as to the consequences.  The appellant is entitled to advance his case on the basis of the real possibility of the worst case scenario.

 


34                               Contrary to my colleague LeBel J., I also think that we cannot speculate that if the jury read the impugned passage it must have assumed that defence counsel was merely raising a hypothesis, rather than asserting that his client had made statements that had been ruled inadmissible.  Although I understand the interpretation given by my colleague, which emphasises the hypothetical turn of phrase in the passage in question, I think that read in context it more likely lends itself to the interpretation that defence counsel was referring to excluded statements actually made by his client. I would not go as far as suggesting, as counsel for the appellant does, that the passage inevitably implies that the appellant made a confession which was excluded. Read in full, the passage refers to several matters that were not in evidence  when the argument took place in the absence of the jury.  In my view, a fair assessment of the impact that the transcript could have had on the jury must be made on the assumption that they read it and understood that counsel for the appellant was concerned that the jury should not find out that his client had made statements that the court had ruled inadmissible; no more, no less.

 

35                               I also think that this is what the trial judge understood, and that is why she cautioned the jury exactly as she did.  She did not identify specifically the passages at issue, so as not to aggravate the damage, if any, but she clearly instructed the jury to disregard references to all matters that were not properly in evidence before them.

 

36                               The trial judge was obviously concerned with the effect and consequences  of what had transpired and she took seriously the application for a mistrial. I share that concern.  However, in my view, she made no error when she exercised her discretion to deny the motion for a mistrial, nor did she err in declining to enter a mistrial after the jury had returned its verdict.  The trial judge was in a privileged position to assess the possible impact of the mishap on the jury and the effectiveness of the sharp warning that she issued.  There is no basis upon which I could say that she was wrong in that fine judgment call.  The information before the jury was at most an innuendo. At the very end of a murder trial, the jury would have come to appreciate the existence of rules of evidence that govern the relevant materials upon which they are called to make a decision.  Taking the case at its highest from the appellant’s point of view, I believe that the admonition issued by the trial judge to the jury was sufficient to remedy any ill effect that the unedited transcripts might have had on the jury.

 

37                               Therefore, the trial judge did not err in rejecting the motion for a mistrial, and there is no need to turn to the proviso.  I must add that if I had concluded that a mistrial should have been declared, I cannot see how such an error could have been cured by the proviso.  For the same reasons, I do not think it can be said in this case that there was a miscarriage of justice within the meaning of s. 686(1) (a)(iii).


 

38                               I agree with LeBel J. on the ground of appeal dealing with the jury selection process.  For these reasons, I would dismiss the appeal.

 

The following are the reasons delivered by

 

39                               LeBel J. -- In this appeal, we are asked to determine whether a conviction should be reversed on the grounds that a transcript revealing conversations which occurred during a voir dire was inadvertently given to the jury during its deliberations.  This calls upon the interpretation and application of s. 686(1)  of the Criminal Code, R.S.C. 1985, c. C-46 , governing the powers of a court of appeal.  The main issue in this appeal is to determine whether the remedial provision of s. 686(1) (b) should apply.

I.  Facts and Trial Judgment

 

40                               On February 13, 1998, after a trial before Madam Justice Keyser and a  jury, the appellant, Mohamed Ameerulla Khan, was convicted of the first degree murder of his wife, Sureta Khan.  This was his third trial.  Previous convictions had been set aside by the Manitoba Court of Appeal.

 

41                               The appellant claimed to have discovered his deceased wife in the bathtub of their home at 6:55 p.m. on January 4, 1994 and to have then telephoned 911.  The appellant’s call was transferred to a first responder who instructed him to leave his wife in the bathtub and drain the water, and that help would arrive very shortly.  Resuscitation attempts were unsuccessful.

 


42                               The Crown asserted that the appellant had killed his wife.  Its evidence was mainly circumstantial.  A pathologist, Dr. John Kelly Martin MacDonald, who was recognized as an expert in forensic pathology, testified for the Crown as to the possible circumstances of the death.  The Court of Appeal summarized Dr. MacDonald’s evidence in the following manner ((1999), 138 Man. R. (2d) 23, at para. 9):

 

Dr. MacDonald testified positively that the deceased did not die in the bathtub either by wet or dry drowning.  In his opinion, she died from asphyxiation, but in an unknown manner.  He estimated the time of death to be between two and four hours before the first responders observed her, which would fix the time of death to be between 3:00 p.m. and 5:00 p.m.

 

43                               Dr. MacDonald's opinion as to the time of death was based on the extent of rigor mortis found in the deceased's body by the first responders and on her core body temperature recorded at the hospital shortly after she was transported there at approximately 8:30 p.m.

 

44                               Dr. MacDonald’s opinion that the deceased did not die in the bathtub was based on the absence of “washerwoman changes or syndrome” on her body.  “Washerwoman syndrome” may be described as changes in the skin condition that result from being immersed in water.  According to Dr. MacDonald, if the deceased was in cool water, which would reduce the extent of washerwoman changes, he would not have expected the extent of rigor which was observed by the first responders.

 

45                               Dr. MacDonald further testified that in his opinion asphyxia or oxygen starvation was the cause of death.  Although the mode of asphyxiation was unclear, Dr. MacDonald was of the opinion that the death could not be classified as being of undetermined origin. Dr. MacDonald testified as follows:

 


I think her mode of asphyxia is undetermined.  If she was not discovered in the bathtub, I think the -- it may very well be an undetermined death, but given the fact that she was in the bathtub when the information that would argue that she has been dead at least a couple of hours and she does not have the washerwoman's changes, that she did not die in the bathtub, so I have great reluctance having the idea that natural deaths walk, let alone undetermined deaths walk.  I do not think I could classify this or not argue with someone who wished to classify this cause of death as undetermined.

 

46                               The appellant relied on a defence of alibi.  However, he did not testify during the trial.  Rather, evidence as to the appellant’s whereabouts on the day in question was provided by an acquaintance, Mr. Marshall Ross, and through the filing of two exhibits.  Mr. Ross indicated that the appellant arrived at his home at 3:40 p.m. in order to do some work on his daughter’s car.  He added that, at 4:01 p.m., the deceased called to speak to the appellant.  Finally, Mr. Ross stated that the appellant left his home at 5:00 p.m.  His recollection of the time of departure was an estimate based on the time he sat down for dinner and the time it would have taken his wife to prepare the meal from the time the appellant left.  Although Mr. Ross was a witness called by the Crown, counsel for the Crown, in his closing arguments, suggested that Mr. Ross’ recollection as to the time of departure was incorrect and that, in fact, the appellant left his residence earlier.  After the appellant left the Ross home, Mr. Ross heard from him a few minutes prior to 7:00 p.m., when the appellant called to tell him that his wife was lying in the bathtub and appeared not to be breathing.  The appellant then requested that Mr. Ross come over.

 

47                               Also presented into evidence was a receipt from an automated teller machine that confirms that the appellant received $60 from a machine at 5:33 p.m. on the relevant date.  The machine was located five minutes away from the appellant’s residence.  Moreover, the appellant produced a receipt from a pharmacy indicating that a prescription order was received at 5:44 p.m. and paid for at 6:35 p.m.


 

48                               The evidence also established that the deceased was heavily insured and that the appellant was the beneficiary.  The Crown’s theory was that the appellant was the only person with access to the house, with a motive and with the opportunity to kill the deceased.  The theory of the defence was that the death was unexplained, that the autopsy was inconclusive and that there was insufficient evidence of foul play.

 

49                               During the course of its deliberations, the jury requested transcripts of Dr. MacDonald’s testimony.  Approximately six and a half hours after the transcripts  were delivered to the jury, it was discovered that the copy of the transcript given to the jury inadvertently contained the record of matters discussed by counsel and the Court in the absence of the jury during a voir dire.  As such matters should have been expunged, defence counsel moved for a mistrial on the basis that the proceedings had become tainted and the trial was unfair.  The main objectionable passage reads as follows:

 

MR. GLAZER [Defence counsel]:  I beg to disagree, My Lady.  The law as I understand it is -- for example, My Lady had ruled that certain comments by the accused are inadmissible.  If the witness during the course of his testimony refers to those comments as forming the basis of some of his opinion, it would be grounds for a mistrial.  He can only refer to what is before the jury; he can't refer to evidence that is not before the jury.

 


50                               The defence argued that the jury had learned that the appellant had made comments that were ruled inadmissible.  In the defence’s view, the jury would speculate as to the nature of those comments and would draw an adverse inference against the appellant.  The trial judge denied the request for a mistrial.  She ordered, however, that the offending transcripts be retrieved and that the jury be provided with clean copies.  The trial judge further cautioned the jury that they were to rely solely on the evidence that was put before them through witnesses and through the evidence filed.  Once the jury returned a guilty verdict of first degree murder, the trial judge requested further submissions regarding the possibility of granting a mistrial.  After submissions by both counsel, the trial judge again declined to declare a mistrial.

 

II.  Manitoba Court of Appeal (1999), 138 Man. R. (2d) 23

 

51                               By unanimous judgment rendered per curiam, the Court of Appeal dismissed the appellant’s appeal from his conviction. The Court of Appeal addressed the issue of whether the jury’s exposure to the tainted transcript resulted in an unfair trial.  In so doing, it took for granted that the appropriate provision under which to resolve this question was the curative proviso contained in s. 686(1) (b)(iii) of the Criminal Code .

 

52                               The Court of Appeal reviewed several appellate court decisions in cases where evidence had inadvertently made its way into the jury room (see: R. v. Duke (1985), 22 C.C.C. (3d) 217 (Alta. C.A.); R. v. Watson (1991), 4 B.C.A.C. 253).  The appellant argued that, in accordance with R. v. Armstrong, [1970] 1 C.C.C. 136 (N.S.C.A.), once mischief was done in the trial process, it was no longer possible to correct it.  Relying on R. v. R. (R.) (1994), 91 C.C.C. (3d) 193 (Ont. C.A.), the Court of Appeal indicated that perhaps such a principle was incorrect and that strong and repeated instructions to the jury could overcome possible prejudice to an accused.  The Court of Appeal also held that trial judges have wide discretion in deciding whether to declare a mistrial.  As a result, appellate courts should exercise great caution when reviewing the exercise of such discretion (see Emkeit v. The Queen, [1974] S.C.R. 133, and R. v. Paterson (1998), 102 B.C.A.C. 200).

 


53                               In the Court of Appeal’s view, the words which inadvertently found their way into the jury room did not have a great potential for harm or mischief.  Even if some prejudice had been caused to the appellant, this was amply remedied by the cautionary instructions provided by the trial judge.  The court also added its opinion on the strength of the evidence against the appellant, in particular in relation to the evidence given by the pathologist, Dr. MacDonald.  The court stated that it constituted “overwhelming evidence as to the manner, time and place of death of the deceased” (para. 47).  The court concluded that, considering the circumstances as a whole “[t]his is an appropriate case in which the proviso is to be applied” (para. 48).  The conviction was therefore upheld.  It was appealed to this Court on the question of the application of the curative provisions of s. 686(1) (b).  An issue concerning jury selection was also raised.

 

III.  Relevant Statutory Provisions

 

54                               Criminal Code, R.S.C. 1985, c. C-46 

 

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

 

(a) may allow the appeal where it is of the opinion that

 

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

 

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

 

(iii) on any ground there was a miscarriage of justice;

 

(b) may dismiss the appeal where

 

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,


(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

 

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; or

 

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

 

IV.  Analysis

 

55                               In the case law, the proper meaning of paras. (a) and (b) of s. 686(1) of the Code has sometimes been misunderstood.  My analysis will first review their interpretation, before turning to the irregularities alleged in the case at bar and the application of s. 686 of the Code to them.

 

56                               Sections 686(1) (a) and 686(1) (b) have distinct functions.  On the one hand, the object of para. (a) is to spell out the conditions pursuant to which an appellate court has the power to reverse a conviction.  The court of appeal’s intervention is warranted whenever (i) the verdict is unreasonable or cannot be supported by the evidence; (ii) the judgment is based on a wrong decision on a question of law; or (iii) a “miscarriage of justice” has occurred.

 


57                               On the other hand, para. (b), and in particular subparas. (iii) and (iv), grant a remedial power to a court of appeal to uphold a conviction despite having found earlier that its intervention could have been justified under para. (a)(ii) or (iii), if the evidence is so overwhelming against the accused that any other reasonable judge or jury would have rendered the same guilty verdict.  Paragraph (b) is thus referred to as the “curative proviso”.  Of course, needless to say a verdict which is defective under para. (a)(i) because it is “unreasonable or cannot be supported by the evidence” cannot be cured under s. 686(1) (b) on the grounds that any reasonable judge or jury would have ruled the same way.

 

58                               Section 686(1) (a)(i) is not at stake in the present appeal.  Although the appellant argued before the Court of Appeal that the verdict was unreasonable, this issue was not raised before us.  Therefore, the question before this Court is whether the conviction should be reversed because either an “error of law” or a “miscarriage of justice” has occurred, and if so, whether s. 686(1) (b) should be applied.

 

59                               My analysis will be divided into four parts.  In the first part, I will examine the notions of “error of law” and “miscarriage of justice”, and their relationship to one another in the context of  s. 686(1)(a)(ii) and (iii) of the Code.  Second, I will look more closely at what may constitute a “miscarriage of justice” as understood by s. 686(1) (a)(iii).  Third, I will examine the proper role and application of the curative proviso contained in s. 686(1) (b)(iii) and (iv).  Finally, I will apply these findings to the fact situation involved in the case at bar.

 

A.     The Relationship Between “Errors of Law” and “Miscarriages of Justice” Under Section 686(1)(a)(ii) and(iii) of the Code

 


60                               Section 686(1)(a)(ii) of the Code states the possibility that a conviction may be set aside “on the ground of a wrong decision on a question of law”.  In that regard, in order for a verdict to be reversed, the judgment must have been based, or have possibly been based, on an erroneous legal norm.  It is not sufficient to demonstrate that a legal mistake has occurred.  It must be found that the judgment was based or could have been based on that mistake, so as to prejudice the accused.  The French version of the s. 686(1) (a)(ii) is clearer on this.  It states that the judgment can be set aside “pour le motif qu’il constitue une décision erronée sur une question de droit” (underlining added).  Thus, it is not enough to simply say that an error of law occurred.  The error must have been, or must possibly have been, significant in the conviction.  It is then appropriate to state that the judgment could constitute a wrong decision on a question of law.

 

61                               The other situations which may justify the intervention of a court of appeal fall into a residual category.  Section 686(1) (a)(iii) refers to the notion of “miscarriage of justice”.  This covers irregularities which the Code attempts to distinguish from the errors of law mentioned in para. (a)(ii) and which may have rendered the trial unfair for the accused, or have created the appearance of unfairness.  I must mention that most of them also find their root in some “error of law”, in the sense that the irregularity would not have occurred if the appropriate legal norms had been followed.  These errors, however, are more akin to procedural irregularities.  I should add that it does not matter whether the irregularity occurred intentionally or not, nor does it matter whether the error is due to a mistake by the judge, a court official, one of the parties in the case, or any other person.  What matters most is the effect of the irregularity on the fairness of the trial.

 


62                               For instance, irregularities due to improper contact between a third party and a juror (R. v. Cameron (1991), 64 C.C.C. (3d) 96 (Ont. C.A.)), the abusive exercise of discretion by the trial judge (Fanjoy v. The Queen, [1985] 2 S.C.R. 233), or inadequate representation of the accused by his counsel (R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.)) may fall into that residual category.  These types of irregularities, like errors under s. 686(1) (a)(ii), may cause prejudice to the accused.   When confronted with such an irregularity, the court of appeal must examine whether it may have had an influence on the verdict or could be perceived as such.  Such analysis must take into account the whole of the circumstances.

 

63                               Although paras. (a)(ii) and (a)(iii) are distinct, they are nevertheless closely related.   Both paragraphs address situations where something irregular in law has occurred during the course of the trial.  In that sense, it can sometimes be difficult to determine whether a case falls under para. (a)(ii) or (a)(iii).  There may often be a fine line between what can constitute “a wrong decision on a question of law” and a “miscarriage of justice”.

 

64                               For instance, issues pertaining to the law of evidence may often be at the intersection between an “error of law” and the residual type of irregularity called “miscarriage of justice”.  When information which would constitute inadmissible evidence is willingly admitted by the judge, it may be seen more as an “error of law”, but when the same information is given to the jury by mistake and the irregularity is discovered afterward, this may seem more as falling into the residual category.  Yet, the result is the same: the jury has been exposed to inadmissible evidence. 

 


65                               All kinds of incidents may happen in the course of a trial, through the interaction of the several different actors involved, and a degree of uncertainty may arise as to their proper legal characterization. One example is where an irregularity allegedly giving rise to a “miscarriage of justice” occurs during a trial, and the judge makes a mistake when attempting to remedy this irregularity.  Would the end result be an “error of law” or a “miscarriage of justice”?  While it is not necessary to answer this question, or to articulate a fine line between “errors of law” and errors leading to “miscarriages of justice”, we may safely consider that the two concepts, although they will often have different origins, may have a similar impact on the validity of the verdict.  

 

66                               Since both target the same problem and, as we will see below, both may be cured under s. 686(1) (b), this difficulty of classification is not greatly problematic.  Thus, whether the defect at trial appears to have been a “wrong decision on a question of law”, or an irregularity allegedly falling within the residual category of  “miscarriage of justice”, the circumstances must be considered to see if the error could have played a significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance, or was merely peripheral.

 

67                               Often, it may be that decisions constituting “errors of law” warranting the intervention of the court of appeal will be more easily identifiable than “miscarriages of justice”.  Indeed, once the court of appeal concludes that the proper interpretation of the law has not been followed by the trial judge, the conclusion may easily show that the accused has not benefited from a fair trial, or a trial conducted according to the principles of criminal law, and therefore that the decision constituted an “error of law” within the meaning of s. 686(1) (a)(ii).  On the other hand, other types of irregularities which result in unfairness, or appearance of unfairness in the trial, may be more difficult to classify.  It will therefore be useful to explore in greater detail the notion of “miscarriage of justice” in  s. 686(1)(a)(iii) of the Code

 


68                               I note that this analysis of the notion of “miscarriage of justice” can also be useful in some cases to determine whether an “error of law” warrants the intervention of the court of appeal under s. 686(1)(a)(ii) of the Code.  As I mentioned earlier, wrong decisions on a question of law do not always involve a straightforward conclusion that s. 686(1) (a)(ii) is implicated, as some errors of law can be trivial or incidental in the context of particular cases.  For instance, if inadmissible evidence is accepted during the trial to prove the identification of the accused, but identification is otherwise proven and is not at issue in the case, the error of law may be merely incidental.  If the error of law could not have prejudiced the accused, the conviction will be upheld.  Reaching a conclusion in that respect will require a balancing taking into account the circumstances of the case and, more particularly, the nature and impact of the error of law.  In that regard, the analysis under s. 686(1) (a)(ii) may call at times upon similar considerations as under s. 686(1) (a)(iii).  I will now turn to those considerations. 

 

B.  The Notion of “Miscarriage of Justice” Under Section 686(1)(a)(iii) of the Code

 

69                               When should an irregularity which occurred during a trial be said to constitute a “miscarriage of justice” as understood by s. 686(1) (a)(iii)?  The essential question in that regard is whether the irregularity was severe enough to render the trial unfair or to create the appearance of unfairness.  Contrary to the analysis under  s. 686(1) (b), the emphasis here is not so much on the final verdict and the overall strength of the evidence against the accused, but rather on the gravity of the irregularity and the effect it may have had on the fairness of the trial. 

 


70                               I should mention that this analysis of  “miscarriage of justice” presupposes that the trial court is competent in relation to the infraction.  The court’s lack of initial jurisdiction and also its loss of jurisdiction because of clear and serious violations of fundamental principles of natural justice can create an automatic “miscarriage of justice”, without it being necessary to examine whether the trial was unfair or appeared unfair.  For instance, in a case where there is a reasoned apprehension of bias on the part of the trial judge, there is an automatic “miscarriage of justice” without having to take the analysis any further to assess the impact of his bias (see R. v. Curragh Inc., [1997] 1 S.C.R. 537, at paras. 5-7). 

 

71                               Such a jurisdictional miscarriage of justice cannot be cured under s. 686(1)(b)(iv), even if the weight of the evidence is overwhelming against the accused.  As we will see below, s. 686(1)(b)(iv) is the provision under which alleged “miscarriages of justice” as understood by para. (a)(iii) may eventually be cured, if they are found to be mere procedural irregularities not rising to the level of a failure of justice.  However, s. 686(1)(b)(iv) indicates that a conviction may be saved, provided that the court “had jurisdiction over the class of offence of which the appellant was convicted”.  Therefore, the curing option would not apply to the type of error which is so fundamental to trial fairness that it amounts to or results in a lack of jurisdiction.

 

72                               This being said, the other types of irregularities require that the whole of the circumstances of each case be carefully weighed in determining whether the trial has been rendered unfair in reality or in appearance.  In so doing, the court of appeal must bear in mind that the accused is not entitled to a perfect trial.  He is entitled to a fair trial, but it is inevitable that minor irregularities will occur from time to time.  The trial cannot be held to a standard of perfection, provided it remains fair in reality and in appearance.  See R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, at para. 28; R. v. Carosella, [1997] 1 S.C.R. 80, at para. 74; R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 101; R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45.

 


73                               Whether a “miscarriage of justice” has occurred asks whether the trial was unfair, or alternatively whether an appearance of unfairness was created.  See e.g. Cameron, supra, at pp. 101-2; R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 543.  This last element should be evaluated in relation to a reasonable and objective observer, by asking if the irregularity would be such as to taint the administration of justice in his or her eyes.  The fact that some member of the public may consider the trial to have been unfair is not sufficient.  We must look at whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so. 

 

74                               Courts should refrain from devising any strict formula in order to determine whether a “miscarriage of justice” has taken place.  Irregularities which can occur during a trial may take many unpredictable forms. (See generally G. D. McKinnon, The Criminal Lawyers’ Guide to Appellate Court Practice (1997), at pp. 89 ff.; P. Béliveau and M. Vauclair, Traité général de preuve et de procédure pénales (8th ed. 2001), at pp. 902 ff.; S. A. Cohen, “Controlling the Trial Process: The Judge and the Conduct of Trial” (1977), 36 C.R.N.S. 15.)  Some may impact the trial in a way which deprives the accused of a fair defence, while others are less significant, depending on the circumstances.  The gravity of irregularities which may occur must inevitably be evaluated by courts on a case-by-case basis.  This being said, certain elements can provide reference points in determining whether a miscarriage of justice has occurred.

 


75                               First, one should ask whether the irregularity pertained to a question which was, in law or in fact, central to the case against the accused.  Thus, an irregularity which is related to a central point of the case is more likely to be fatal than one concerning a mere peripheral point (see e.g. Olbey v. The Queen, [1980] 1 S.C.R. 1008, at p. 1029).  Of course, this issue will not always be absolutely determinative, and it is possible that a serious irregularity on a peripheral point can have rendered the trial unfair in reality or in appearance.  Moreover, it is important to realize that some irregularities will not relate to a particular element in the case, but will rather create a general apprehension of unfairness on the whole of the case.  This could occur, for instance, if jurors were led, through some irregularity, to feel greater sympathy for the Crown’s case in general or greater antipathy towards the accused.

 

76                               Second, the court of appeal should consider the relative gravity of the irregularity.  How much influence could it have had on the verdict?  What are the chances that the apprehended detrimental effect of the irregularity did in fact occur?  How severe could these detrimental effects have been for the accused’s case?  This is important not only in relation to an actual finding of unfairness, but also in relation to the appearance of unfairness.  A single irregularity which is unlikely to have had any significant impact would seem to indicate to the reasonable observer that the trial appeared fair. 

 

77                               When the court considers the gravity of the error, it should also consider the possible cumulative effect of several irregularities during the trial.  Sometimes, a trial in which more than one error has occurred can be seen as unfair, even if these irregularities standing alone might not have been fatal on their own.  (In that regard, compare Cathro v. The Queen, [1956] S.C.R. 101, with the dissenting judgment of Laskin J.A. of the Ontario Court of Appeal in R. v. Ferguson (2000), 142 C.C.C. (3d) 353, at pp. 376-77, which was affirmed by this Court, [2001] 1 S.C.R. 281, 2001 SCC 6.)  Conversely, when, apart from one alleged irregularity, the trial was otherwise error-free, the court may sometimes be justified in forgiving the error more easily.

 


78                               Third, one should be mindful of the type of trial during which the error has occurred.  Was it a trial by jury or by a judge sitting alone?  Sometimes, irregularities can have a more severe impact on the fairness of the trial when they occur during a trial before a judge and a jury. This is especially true considering that some irregularities can have a psychological effect, which we presume judges are more apt to overcome than juries.  However, this question is not absolutely determinative, and some irregularities will render the trial unfair even if they occurred before a judge sitting alone, while other mistakes may not be fatal even if they took place before a jury.  Thus, a well-instructed jury may have the capacity to overcome irregularities.

 

79                               Fourth, and related, is the possibility that the irregularity may have been remedied, in full or in part, at the trial.  When the trial judge realizes that an irregularity has occurred, he or she may consider whether to declare a mistrial, but when possible, he or she may also attempt to remedy the error. The decision of whether or not to declare a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised (see Emkeit, supra, at pp. 139-40; R. v. Martineau (1986), 33 C.C.C. (3d) 573 (Que. C.A.), at p. 576; R. v. Lessard (1992), 74 C.C.C. (3d) 552, [1992] R.J.Q.1205 (C.A.), at pp. 559-63 C.C.C.; R. v. Taillefer (1995), 100 C.C.C. (3d) 1, 40 C.R. (4th) 287 (Que. C.A.), at p. 54 C.C.C.).  Although that discretion is not absolute, its exercise must not be routinely second-guessed by the court of appeal.

 


80                               A decision on whether an incident has affected trial fairness in a way which would warrant declaring a mistrial must take into account any corrective measure which has been brought, or could be brought, by the judge to remedy the irregularity (see e.g. Lessard, supra, at pp. 559-63 C.C.C.; R. (R.), supra, at p. 197; R. v. Siu (1998), 124 C.C.C. (3d) 301 (B.C.C.A.), at p. 327).  Similarly, it is interesting to note that in decisions involving the possibility of granting a “stay of proceedings”, an inquiry into the possible alternative solutions available to remedy an apprehension of unfairness is also relevant (see Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 90; R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 75).

 

81                               Thus, when a trial judge realizes that an error has occurred but decides not to order a mistrial, the court should consider the remedy selected by the judge, if any, as one of the elements in its assessment of whether the trial has been or has appeared unfair.  If the remedy chosen by the judge consisted of a warning to the jury on what they should or should not consider in reaching their verdict, the ability of a jury to follow instructions must be recognized, although this reality is obviously subject to its own limits.  In the case of R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 692-94, Dickson C.J. stated:

 

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. . . .  

 

It is of course, entirely possible to construct an argument disputing the theory of trial by jury. Juries are capable of egregious mistakes and they may at times seem to be ill‑adapted to the exigencies of an increasingly complicated and refined criminal law. But until the paradigm is altered by Parliament, the Court should not be heard to call into question the capacity of juries to do the job assigned to them. The ramifications of any such statement could be enormous. Moreover, the fundamental right to a jury trial has recently been underscored by s. 11 (f) of the Charter . If that right is so important, it is logically incoherent to hold that juries are incapable of following the explicit instructions of a judge. . . .

 

We should maintain our strong faith in juries which have, in the words of Sir William Holdsworth, “for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense” (Holdsworth, A History of English Law (7th ed. 1956), vol. I, at p. 349). [Emphasis in original.]

 


82                               Thus, we should not presume that jurors are incapable of following instructions given by the judge.  On the contrary, when the judge issues a clear and forceful warning about the use of some information, we are entitled to presume that it diminishes the danger that the jury will misuse this information when rendering its verdict.

 

83                               The Quebec Court of Appeal case of Lessard, supra, provides an interesting illustration.  Four men were charged with several murders in relation to alleged biker gang disputes.  During the course of the jury’s deliberations, one of the jurors revealed to the judge that he had been bribed to vote in favour of an acquittal.  He also told the judge that he had revealed this matter to the other jurors.  The judge declined to declare a mistrial.  He decided to discharge this particular juror, and to continue the deliberations with eleven jurors, as allowed by s. 644(2) of the Code.  He took the precaution of warning the remaining jurors to take into consideration only the evidence that was presented before them, and to not let what they had learned about the attempted bribe influence their decision.  The Quebec Court of Appeal confirmed the decision of the trial judge to go on with the trial and upheld the conviction.  Baudouin J.A. emphasized at p. 563 C.C.C. the privileged position of the trial judge when choosing the appropriate remedy when such mistakes happen during a trial:

 

[translation] The trial judge is the person, much more so than the Court of Appeal judges several years later, in the best position to assess its true, concrete and practical impact on the jury, in light of the general atmosphere in which the trial took place, the specific circumstances of the case, of what he may have observed during all the stages of the trial and the reaction of the members of the jury at the time of his comments on the incident.  He is also in the best position to find a solution which would neutralize the poison distilled in the minds of the jury.  His decision must therefore be given the greatest respect and it is only where the evidence shows that he was clearly mistaken and that he did not properly exercise his discretion that, in my view, a Court of Appeal can and must intervene.

 


84                               Fifth, one must keep in mind that what matters most is the effect of the irregularity on the fairness of the trial and the appearance of fairness.  Therefore, it will not be a mitigating factor that the irregularity did not result from a deliberate act by the Crown, the judge, or one of the court officials.  In some cases, the intentional nature of the irregularity may be a factor which will contribute to the appearance of unfairness.  However, one should not invoke the accidental nature of an irregularity to argue that it is less likely to have triggered a “miscarriage of justice”.

 

85                               Sixth, the attitude of defence counsel if and when he was confronted with the irregularity may have an impact.  Therefore, if defence counsel had an opportunity to object to the irregularity and failed to do so, this militates for a finding that the trial was not unfair (see Imrich v. The Queen, [1978] 1 S.C.R. 622, at p. 631; Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 840; R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 36-38).  Of course, this is not absolutely determinative, as a trial can be declared unfair even if defence counsel failed to object (see e.g. R. v. Arcangioli, [1994] 1 S.C.R. 129). 


86                               If the accused’s counsel himself saw no unfairness resulting from a certain irregularity at trial, this would tend to indicate that the trial was not unfair, in reality or appearance.  Even if an irregularity might seem prejudicial to the accused, the failure to object may very well be a calculated tactical decision by defence counsel.  Hence, courts must be careful to avoid second-guessing such tactical decisions (see e.g. R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22, at paras. 34-35; R. v. Terceira (1998), 123 C.C.C. (3d) 1 (Ont. C.A.), at p. 32, aff’d [1999] 3 S.C.R. 866; R. v. P. (G.) (1996), 112 C.C.C. (3d) 263 (Ont. C.A.), at p. 286). The inference drawn from counsel’s failure to object may be even stronger when he expressly gave his consent to the alleged irregularity.  Finally, the more counsel had time to reflect to bring an objection, the more this criterion will be determinative, and the more it will be appropriate to infer that the trial was not unfair (see R. v. Chambers, [1990] 2 S.C.R. 1293, at p. 1306). 

 

87                               I note that none of these factors should be absolutely determinative on its own.  Rather, they should be considered together in light of the circumstances of each case in order to assess whether the trial has been unfair.  Moreover, these criteria are not exhaustive.  Other factors may be articulated which will inform the analysis under s. 686(1)(a)(iii) of the Code to determine whether a “miscarriage of justice” has occurred.

 

C.  The Curative Proviso in Section 686(1)(b)(iii) and (iv) of the Code

 

88                               The second stage of the analysis is the applicability of s. 686(1)(b).  (For an account of the proviso’s legislative history, see R. R. Price and P. W. Mallea, “‘Not by Words Alone’: Criminal Appeals and the No Substantial Wrong or Miscarriage of Justice Rule”, in V. M. Del Buono, ed., Criminal Procedure in Canada (1982), 453, at pp. 457-61.)  Although it was adopted in several stages, it should now be viewed and construed in its totality.  It evinces a legislative intent to allow courts of appeal to cure all kinds of procedural irregularities and errors in law, provided the required conditions for its application are met.  The structure of these provisions acknowledges that, when an error of law or a procedural irregularity is established, a presumption is created in favor of allowing the appeal, unless it is shown that the error or irregularity is curable.  At this point in its legislative development, the scope of application of the proviso appears now to have become a broad one.  It calls upon appellate courts to assess the relevance of legal issues, the fairness of the process and the prejudice to the accused.

 


89                               The proviso is currently governed by s. 686(1)(b)(iii) and (iv) of the Code.  Paragraph (b)(i) provides that the court of appeal may dismiss an appeal by substituting a conviction for a lesser included offence.  This particular provision is of no interest to us in the present analysis.  Paragraph (b)(ii) instructs the appellate court  to reject the appeal  if none of the defects presented in para. (a) have been found.  Thus, by necessary implication, this means that paras. (b)(iii) and (b)(iv) inevitably address situations where the court of appeal has first found that one of the grounds of para. (a) has been satisfied in the first stage of the analysis, but may nevertheless dismiss the appeal at the second stage.

 

90                                Section 686(1)(b)(iii) allows an appellate court to uphold a conviction despite the fact that it was based on an “error of law”, within the meaning of para. (a)(ii), provided that “no substantial wrong or miscarriage of justice has occurred”.  In order to invoke this provision successfully, the Crown must demonstrate that any reasonable judge or jury would have rendered the same verdict (see R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11, at para. 104; R. v. Cleghorn, [1995] 3 S.C.R. 175, at para. 39; R. v. Bevan, [1993] 2 S.C.R. 599, at pp. 616-17; R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 919).  Even though an important error of law could have influenced the decision, it would not be appropriate to reverse the conviction when the evidence is so overwhelming against the accused that it would inevitably lead to the same result.  Since a new trial before a reasonable judge or jury would inevitably lead to a conviction, to order a new trial would only result in a waste of time and resources.  Similarly, when the court of appeal finds that the evidence against the accused would inevitably have led to the same result, it can uphold a conviction despite having found under para. (a)(iii) that a procedural irregularity not amounting to a miscarriage of justice had occurred. 

 


91                               It is true that this Court, in Fanjoy, supra, at pp. 239-40, refused to consider the application of the proviso in para. (b)(iii) to cure a conviction which had been tainted by a failure to limit an improper cross-examination of the accused.  The Court underlined that para. (b)(iii) was, by its express words, applicable to cure only errors of law under para. (a)(ii).  However, it is important to stress that para. (b) now contains a fourth subparagraph which was not in force at the time the Fanjoy case was heard.  In fact, in July 1985, a few months after Fanjoy was heard by this Court and shortly before the decision was released, Parliament amended the Criminal Code  and added s. 686(1) (b)(iv) (see the Criminal  Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 145).  This provision states that a court of appeal may uphold a conviction if  “notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby”. 

 

92                               Parliament seems to have attempted to answer a problem in the structure of s. 686(1) of the Code through this amendment by conferring upon courts of appeal the power to cure procedural irregularities not amounting to a miscarriage of justice in the same way as “errors of law” may be cured.  Thus, it appears now that s. 686(1)(b)(iv) allows a court of appeal to uphold a conviction despite a procedural irregularity which is alleged to be miscarriage of justice as understood in para. (a)(iii).

 


93                               This solution is the most logical.  Indeed, why should it be possible under s. 686(1)(b) to cure any important “error of law”, but not another irregularity allegedly falling within the residual category of “miscarriage of justice” without actually being such a failure of justice?  The two types of defects often share the common ground that they may render the trial unfair or apparently so.  There is no valid reason for allowing only one of the two types of errors to be cured under para. (b), but not the other.  In the end, they may have a similar impact on the validity of the trial and the conviction. 

 

94                               In Fanjoy, this Court had no other choice but to refuse to apply the proviso since, at the time, para. (b)(iv) did not exist and para. (b)(iii)’s wording made it only applicable to cure errors of law under para. (a)(ii), as it did not view the failure to control abusive cross-examination as such an error (p. 240, per McIntyre J.).  However, since the legislative amendment of 1985, it is now appropriate to allow for a procedural error not amounting to a “miscarriage of justice” under para. (a)(iii) to be cured under para. (b), when any reasonable judge or jury would inevitably have reached the same verdict.

 


95                               According to some interpretations given to s. 686(1)(b)(iv), the addition of this provision had been a long-delayed response to a jurisdictional  problem raised in Meunier v. The Queen (1965), 48 C.R. 14, aff’d [1966] S.C.R. 399.  In that case, the Quebec Queen’s Bench and this Court held that the provision which is now s. 686(1)(b)(iii) did not allow a court of appeal to cure a procedural irregularity resulting in the loss of jurisdiction of the trial court.  A few years after the addition of s. 686(1)(b)(iv), the Ontario Court of Appeal described this provision as a solution to the Meunier problem in R. v. Cloutier (1988), 43 C.C.C. (3d) 35.  It had been designed to catch procedural errors which caused a loss of the initial jurisdiction over the matter.  The Court of Appeal drew a distinction between three different kinds of error.  At page 48 of its reasons, the Ontario Court of Appeal distinguished errors of substance, which arise when the trial court has no jurisdiction over the class of offences and which are not in the nature of procedural irregularities, errors of a relatively minor nature which do not result in a loss of jurisdiction, and irregularities in procedure which are so serious in nature that they are deemed to be matters of substance which result in loss of jurisdiction.

 

96                               According to the Ontario Court of Appeal in Cloutier, s. 686(1)(b)(iv) will not cure an absence of jurisdiction.  It will not apply to an irregularity that could be  cured under s. 686(1)(b)(iii).  It will allow the Court of Appeal to cure substantial procedural errors triggering a loss of jurisdiction provided it was of the view that the error caused no prejudice to the appellant. 

 

97                               To be sure, s. 686(1)(b)(iv) catches errors that are jurisdictional in nature in the sense that they cause the loss of a jurisdiction which already existed (see R. v. Simard (1989), 36 Q.A.C. 74, at para. 25).  It allows a court of appeal to remedy errors that were committed when there was jurisdiction over the matter but when it was lost by reason of a substantial procedural error.  With respect to the other views, its application does not appear limited to procedural errors or  irregularities which caused a loss of jurisdiction.  The addition of para. (b)(iv) does not appear only as a late reaction to the Meunier judgment, but was also intended to cover situations like the one which arose in Fanjoy, supra.  It is designed to address situations where even serious procedural errors may be cured, provided it can be shown that they did not cause prejudice to the accused.  Case comments seem to indicate that the provision may find its application in cases of substantial procedural error, where the error may or may not cause a loss of jurisdiction but causes no prejudice.  (See E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. (loose-leaf)), vol. 2, at para. 23: 1080; see Béliveau and Vauclair, supra, at pp. 833-34; R. v. Fabre (1990), 46 Q.A.C. 133; R. v. Deyardin (1997), 119 C.C.C. (3d) 365, [1997] R.J.Q. 2367 (C.A.).)

 


98                               Section 686(1)(b)(iv) takes its place in a set of provisions which were gradually added to the Criminal Code .  In the end, these provisions attempt to prevent the annulment of criminal verdicts or mistrials for reasons that relate essentially to technicalities of the law, which have no real bearing on the fundamental legality or fairness of a trial.

 

99                               Section 686(1)(b) demonstrates an intention to avoid useless debates and litigation on the proper characterization of an error or irregularity in the conduct of a criminal trial.  Instead, it allows courts to go straight to the problem of the existence and applicability of some remedy.  These curative provisions seek to avoid an unduly formalistic approach to criminal procedure as Proulx J.A. of the Quebec Court of Appeal put it in Primeau v. La Reine, [2000] R.J.Q. 696, at p. 705:

 

[translation] Shortly after the decision in R. v. C.N., the Supreme Court of Canada clearly set out, in R. v. Clunas, its approach to criminal procedure, which deviates fundamentally from the traditional formalistic approach and is consistent with the philosophy underlying the curative proviso (s. 686(1)(b)(iv) Cr.C.).  In the opinion of the Supreme Court, which adopted what had been said by Kelly J. in R. v. Kennedy, a vital objective of criminal procedure is to ensure that the accused may present a full answer and defence in a manner that will not prejudice him; accordingly, any procedural deviation that does not cause any prejudice should not result in the invalidity of the proceedings, such as the information in this case, which moreover satisfied all of the procedural requirements of an indictment.  That is the conclusion I have reached in this case, by refusing to have the appellant benefit from a technical irregularity which he could have invoked at trial but which his silence or ignorance cannot now revive to serve as an argument to invalidate a trial whose fairness is not in issue.

 

 (See also Taillefer v. La Reine, [1989] R.J.Q. 2023 (C.A.), at p. 2041.)

 


100                           Even though many procedural errors fall under s. 686(1)(b)(iii), the flexible provision of s. 686(1)(b)(iv) may also cover situations where a serious breach of a rule of procedure has occurred.  In order to apply s. 686(1)(b)(iv), the court of appeal does not have to inquire whether or not it resulted in a loss of jurisdiction, or whether it will cause (within the technical sense of the word) such a loss of jurisdiction or to extend the meaning of the concept of a loss of jurisdiction in order to cure it.  (See Deyardin, supra, at pp. 371-72 C.C.C.)  Even if the error is significant, the clause allows the court of appeal to focus on the core issues of the trial, whether it took place in conformity with the principles of the criminal law and justice and in essential fairness to the accused.  On the other hand, it will not remedy a failure of justice or an error of law which may affect the verdict in a significant manner or in the absence of jurisdiction.

 

101                           Attempts at classifying errors arising out of the interplay of several actors in the criminal trial as errors of law for the purpose of s. 686(1)(b)(iii) fail to catch the complexity of such situations.  Such an approach may try to bring these cases under s. 686(1)(b)(iii), in a roundabout way by focussing the analysis entirely on the decision or action the presiding judge took or failed to take in respect of a particular problem.  A broader and more flexible application of s. 686(1)(b)(iv) will better reflect the nature of those situations, as it acknowledges their often complex nature which may require consideration of the behaviour of other actors in the criminal  trial, and not only of the judge.  What is at stake in these cases is not only the legal assessment of the validity of the legal decision of the court, but also an evaluation of the conduct of all the actors in particular incidents during the course of a criminal trial.  Section 686(1)(b)(iv) is designed to safeguard the essential requirements of substantive justice within the criminal trial system, while at the same time protecting trials and verdicts against the impact of technical mistakes in the conduct of a trial, such as procedural irregularities or errors of law which do not result in a miscarriage of justice, cause no prejudice to the  accused or do not have any significant impact on the legality of the verdict.

                          


102                           This interpretation would give a fuller meaning to s. 686(1)(b)(iv), given that s. 686(1)(b)(ii) already states that the court of appeal may reject the appeal when none of the grounds mentioned in para. (a) is satisfied.  Thus, para. (b)(iv) would necessarily have to apply to cure the defects in either para. (a)(i), (a)(ii) or (a)(iii).  Yet it obviously is not designed to apply to “unreasonable verdicts” covered by para. (a)(i).  And as for “errors of law” in para. (a)(ii), they are already covered by the traditional proviso in para. (b)(iii).  Thus the only option left is to apply para. (b)(iv) to cure serious procedural irregularities falling under para. (a)(iii), which may or may not cause a loss of jurisdiction.  This is consistent with the reasoning behind the existence of the proviso, which is to avoid ordering unnecessary new trials. 

 

103                           In addition, as we have seen earlier, the fact that the proviso may be applied to cure both “errors of law” as well as procedural irregularities diminishes the problem associated with the distinction between the two concepts and the classification of the two categories of errors.  In many cases, it may be difficult to decide whether a particular fact situation falls within an “error of law” or a “procedural error”.  As I indicated earlier, in some cases the categorization may even appear quite artificial.  However, since the analysis remains similar, in respect of both categories, and also since s. 686(1)(b) may be applied in the same manner to both, the end result remains equivalent.   

 

104                           It is important to realize, however, that whether s. 686(1)(b) is used to cure an “error of law” or a procedural irregularity not amounting to miscarriage of justice, the test should remain a very demanding one.  Section 686(1)(b) may be used only when the conviction was “inevitable” (S. (P.L.), supra, at p. 918).  In Bevan, supra, Major J., writing for the majority, summarized the applicable test as follows (at pp. 616-17):


 

The question to be asked in determining whether there has been no substantial wrong or miscarriage of justice as a result of a trial judge's error is whether “the verdict would necessarily have been the same if such error had not occurred”: see Colpitts v. The Queen, [1965] S.C.R. 739, per Cartwright J. (as he then was), at p. 744; Wildman v. The Queen, [1984] 2 S.C.R. 311, at pp. 328‑29. This test has also been expressed in terms of whether there is any possibility that if the error had not been committed, a judge or properly instructed jury would have acquitted the accused: see Colpitts, per Spence J., at p. 756; R. v. S. (P.L.), [1991] 1 S.C.R. 909, per Sopinka J., at p. 919; R. v. Broyles, [1991] 3 S.C.R. 595, at p. 620; R. v. B. (F.F.), [1993] 1 S.C.R. 697, per Iacobucci J. at pp. 736‑37. I do not interpret these two approaches as being intended to convey different meanings. Under either approach, the task of an appellate court is to determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made. [Emphasis added.]

 

105                           Thus, it is not sufficient for the court of appeal to agree with the first verdict or to think that the same jury would have convicted.  They must be convinced that any other reasonable judge or jury would necessarily have convicted.  Courts of appeal must respect the primary role of trial judges and juries in making factual determinations after having heard and seen the evidence.  Thus, a finding by a court of appeal that the conviction was “inevitable” must be reserved only for the most obvious cases. 

 


106                           In other cases where, although the evidence appears clear, the written record does not allow the court of appeal to conclude that any other judge or jury would necessarily have rendered a guilty verdict, the appropriate avenue is to order a new trial.  This approach must be carefully followed, and courts of appeal must resist the temptation of applying routinely s. 686(1)(b), unless they are convinced that a new trial would result in the same verdict.  A too flexible and broad application of the provision might jeopardize the right of the accused to the fairness and regularity of the trial process and would not respect the distinction between the respective roles of trial courts and appellate courts in that process.  On the basis of these principles, I shall now turn to the alleged irregularities invoked in the case at bar.

 

D.  The Alleged Irregularities in the Case at Bar

 

107                           Under s. 686(1)(a) of the Code, which is the first step of the analysis, we must first determine which subparagraph of s. 686(1)(a) will apply.  Before the Court of Appeal, the accused had argued that the conviction should be quashed because the verdict was unreasonable, pursuant to para. (a)(i).  The Court of Appeal however rejected this argument and this issue is not validly before us. 

 

108                           As indicated above, two issues were raised before this Court.  The first issue relates to the circumstances surrounding jury selection in this case.  The second issue relates to the tainted transcripts which were given to the jury during their deliberations.  In my view, the only truly debatable issue in this case is the second one. 

1.    The Circumstances Surrounding Jury Selection

 

109                           I shall begin by discussing briefly the first issue, which the Court of Appeal refused to consider, but was raised again before us.  It relates to an alleged defect in the jury selection process.  The appellant had also been charged with the murder of his sister, Bibi Khan.  The appellant had originally been charged and tried on the two counts together, and was convicted.  After a decision of the Manitoba Court of Appeal (R. v. Khan (1996), 108 C.C.C. (3d) 108) raising concerns of similar fact evidence set the convictions aside, the two counts were tried separately.  When the case at bar was tried, the appellant had already been convicted separately of the murder of his sister, and his conviction was under appeal.


 

110                           The alleged problem derives from the fact that prospective jurors waiting to be selected in this case may have discussed the appellant’s other trial for the murder of his sister. The appellant submitted that prospective jurors were not instructed not to  talk about the case or the appellant while awaiting jury selection.  Despite the fact that the appellant was to benefit from a separate trial on this indictment, it was revealed by prospective jurors in front of already-selected jurors during challenges for cause that the sister’s murder case had been discussed in the jury array.  The appellant argues that the entire panel should have been rejected as the jurors which had already been selected were tainted by these comments. It is further argued that this issue should have been litigated before the trial judge but could not be because another justice presided over jury selection.

 

111                           There was no irregularity in the jury selection process.   The challenge for cause process is designed to deal with the very issue of juror bias.  Jurors are not required to be utterly ignorant of pre-trial publicity or media comment.  They are instead required to swear that they will try the case free of bias and render a true verdict on the evidence.  Some jurors were indeed challenged upon the very basis about which the appellant now complains, and were found to be unbiased. 

 

112                           The jury selection issue was argued before the presiding justice in the selection process.  In refusing a motion for a mistrial, the justice noted that each trier had been found to be unbiased and had sworn to decide the case based on the evidence.  He warned the jury members to ignore extraneous information and asked if they had heard anything “today or since you were sworn in which has affected your ability to arrive at a true verdict based on [the evidence]”.

 


113                           In my view, the confirmation solicited by the presiding justice that the jury remained unaffected by anything they heard during the challenge for cause process removed any appearance of, or actual, unfairness from the jury selection process.  Further, the hearing of the initial motion for a mistrial by the presiding justice rather than the trial judge was the fair approach in my view given that the presiding justice was the one who saw and heard what occurred.  As well, the trial judge reheard the motion.  The appellant was given full opportunity to subsequently argue this issue before her, although without any success.

 

2.    The Issue of the Tainted Transcripts

 

114                           The only real question before us relates to the jury’s exposure to the tainted transcripts which contained the voir dire information.  The leak of the tainted transcript to the jury was certainly an error or an irregularity.  Obviously, the reason the jury is excluded from the courtroom when a voir dire is held is that they should not hear what is said in that context.  Thus, their being given access to the transcripts from the voir dire during their deliberations defeats the purpose of the rule and has the potential for rendering the trial unfair, depending on the circumstances.

 


115                           This mistake does not seem to be in the nature of an “error of law” as understood by s. 686(1)(a)(ii) of the Code.  This is not really a case where the judge made a “decision on a question of law” which was among the bases of a conviction.  The error was more akin to a procedural irregularity which happened by accident.  The only legal ruling which the judge issued in relation to the tainted transcripts was her decision not to order a mistrial.  As mentioned earlier, this type of decision is discretionary.  Of course, this discretion cannot be exercised abusively, but an abuse of discretion by the trial judge is not an “error of law” within the meaning of s. 686(1)(a)(ii) of the Code (see Fanjoy, supra, at pp. 239-40). Thus, as this case does not seem to fall squarely within the “error of law” category, this becomes a matter to be examined under s. 686(1)(a)(iii), in the residual category of procedural irregularity.

 

116                           In the case at bar, did a “miscarriage of justice” occur?  Was the irregularity fatal in the context of s. 686(1)(a)(iii) of the Code?  In other words, did the fact that transcripts from the voir dire were inadvertently given to the jury during their deliberations render the trial unfair or create an appearance of unfairness?  The question should be answered in the negative.

 

117                           First, the irregularity did not relate to a point which was particularly central in law or in fact to the case against the accused.  The main objects of contention in the present case were the “washerwoman syndrome” and the inference which should be drawn from it, as well as the alibi offered by the appellant.  The tainted transcripts did not contain any information which was related to these points or to any other major element of the case against the appellant.  It was rather a general inference that the appellant might have made some statements which were ruled inadmissible. Thus, while this can still lead to an unfair trial depending on the circumstances, the fact that it did not relate to a central issue militates against a finding of unfairness.

 


118                           Second, was the irregularity in the case at bar of significant importance?  Although it is quite likely that the jury might not have read the problematic passages, which were buried among 348 pages of testimony, I will assume for the sake of the analysis that the jury had read them.  But even if the jurors read the problematic passage, what could they have understood from it?  I note that the passage did not contain the declarations of the appellant themselves, but rather a discussion between defence counsel and the judge, vaguely suggesting that the appellant might have made some statements which were ruled inadmissible.  This is not as serious as if the jury had been exposed to the actual statements, or if it was clear from the passage that some incriminating statement had been made by the appellant.

 

119                           In addition, as the respondent has pointed out before this Court, the main problematic extract is worded in hypothetical terms.  This therefore would indicate that no negative inference could be drawn against the appellant:

 

MR. GLAZER: I beg to disagree, My Lady.  The law as understand it is -- for example, My Lady had ruled that certain comments by the accused are inadmissible.  If the witness during the course of his testimony refers to those comments as forming the basis of some of his opinion, it would be grounds for a mistrial.  He can only refer to what is before the jury; he can’t refer to evidence that is not before the jury.  [Emphasis added.]

 

120                           The hypothetical nature of this extract is reinforced by the fact that other hypothetical references had been made before.  Thus, prior to the above quoted extract, the transcripts contain the following comment:

 

MR. GLAZER: No.  My concern -- I might as well deal with it now -- is that I hope my friend isn’t going to ask this witness to reveal hearsay that he relied on that has not been tendered as evidence in court because that would be inadmissible.  For example, if certain photographs are not filed and the witness says he’s basing his opinion on photographs that haven’t been filed, that is inadmissible.  If he says that he’s basing his opinion based on temperature he believes was taken, but that temperature was not filed as an exhibit or tendered as evidence in the trial, then, the jury has to be told to disregard that.  [Emphasis added.]

 

121                           Thus, if a juror happened to lay his eyes on these passages, it is reasonable to infer that he probably would have perceived them as expressing a hypothesis.  He or she would not have found in them a confirmation that actual statements were ruled inadmissible.

 


122                           The third factor, which is whether the trial was held before a judge sitting alone or before a judge and jury, obviously militates for a finding of unfairness.  In fact, it is because the trial was before a jury that this tainted transcript causes a problem.  If the trial had been held before a judge sitting alone, the fact that the judge would know that some evidence was excluded would not be problematic, as the judge is allowed to have such knowledge without creating an appearance of unfairness.

 

123                           However, we must also consider in that regard the fourth factor, which is the warnings given by the judge to the jury.  All doubts concerning the unfairness or appearance of unfairness of the trial are, in my view, put to rest in the circumstances of this case when we consider the remedy chosen by the judge when she realized that the tainted transcripts had been leaked to the jury.  The judge explained to the jury on several occasions that they should only consider what they had seen or heard during the proceedings.  The judge even specified that, if they had read anything else in the transcripts which were given to them, they should not consider it.  After the tainted transcripts were taken from the jury, the judge warned the jury in strong and clear terms:

 

Members of the jury, it's come to my attention that among some of the transcripts that you were provided with today that they contain some matters that took place while you were not in the courtroom and they are matters that were not properly put before you in evidence.

 

As I indicated to you in my charge to you, the only things that you are to base your decision on are the exhibits and the evidence that you heard from the witness box when you were here and on no other considerations.  I can't strongly caution you enough that your decision is to be based solely on what was put before you through the witnesses and through the evidence that was filed.

 

What I have done is I have taken the transcripts that were provided to you.  We're in the process of preparing proper transcripts and those will be given back to you when they're ready.

 


                          Again, please, bear in mind when you're deliberating that only matters that were put before you in your presence are to be considered by you and nothing else, and, please, if there is anything in the transcripts that you have read that wasn’t before you, I urge you to put it out of your mind completely.

 

The next day, she warned them again in the following terms:

 

We’re now in a position to give you clean copies of all of the transcripts.  And before I do so, I again wish to urge you to remember the oath you took to render a true verdict based only on the evidence that was before you.  I'm not certain whether you read anything that was in the transcripts that wasn't before you properly, but if you did, please put it out of your mind and look deep into yourself and make sure that you render a verdict based only on what was properly before you, that is the witness testimony and the exhibits that were filed in this case.

 

Finally, the final charge to the jury contained the following remarks:

 

You will recall that during the course of my preliminary remarks to you at the commencement of these proceedings, I advised you that you are the sole judges of the facts in this case.  You were sworn to bring in a true verdict according to the evidence.  That means that you should only consider the testimony and the exhibits which have come before you at this trial.  You must put out of your minds all prejudice against the accused and all sympathy for the deceased, which you may have, or anything which you may have heard or read or seen apart from the actual evidence that was given by the witnesses under oath in the witness box, exhibits admitted as evidence and admissions of facts made by counsel.

 


124                           The appellant before this Court attempted to downplay the importance of these warnings by pointing out that the jurors were not warned specifically what extracts they should ignore. Given the possibility that the jurors might not have read them, telling them which extracts she was referring to would most likely have done more harm than good.  Thus, it was appropriate not to tell them more than needed about the contents of these extracts.  If one of the jurors ever read the problematic passages, then the carefully worded warnings given by the trial judge were sufficient to ensure that no prejudice was caused to the appellant and that the trial did not appear unfair. 

 

125                           I am satisfied that no “miscarriage of justice” within the meaning of s. 686(1)(a)(iii) of the Code has occurred.  It is therefore not necessary to examine whether the conviction could be saved under the curative proviso in s. 686(1)(b)(iv) of the Code.

 

V.  Order

 

126                            I would dismiss the appeal and confirm the conviction of the appellant for first degree murder.

 

Appeal dismissed.

 

Solicitors for the appellant:  Martin Glazer Law Office, Winnipeg.

 

Solicitor for the respondent:  Manitoba Justice, Winnipeg.

 

 

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