In R. v. Mian, released on September 12, 2014, the Supreme Court of Canada considered the issue of an appellate court’s ability to raise new grounds of appeal and identified factors that should guide a court in doing so. At the center of the Court’s decision is the necessity to find a balance between two competing tensions: the adversarial system and the need to prevent an injustice. As Rothstein J. put it, the question is: “at what point can an appellate court disrupt the adversarial system and raise a ground of appeal on its own?” (para. 1)

From the outset, Rothstein J. made it clear that there was no dispute that an appellate court has jurisdiction to raise a new issue which the parties have not raised. The question is “how broad that jurisdiction is, when it should be exercised, and what procedures should be followed when it is invoked” (para. 28).

Not every issue raised by an appellate court will constitute a “new issue.” Rothstein J. held that an appellate court will be found to have raised a “new issue” when:

[35] … the issue was not raised by the parties, cannot reasonably be said to stem from the issues as framed by the parties, and therefore would require that the parties be given notice of the issue in order to make informed submissions. Issues that form the backdrop of appellate litigation will typically not be “new issues” under this definition. Exercising the jurisdiction to ask questions during the oral hearing will not constitute raising a new issue, unless, in doing so, the appellate court provides a new basis for reviewing the decision under appeal for error.

In holding that appellate courts should have the discretion to raise new issues, Rothstein J. specified that “this discretion should be exercised only in rare circumstances.” He added that an

[41] … appellate court should only raise a new issue when failing to do so would risk an injustice. The court should also consider whether there is a sufficient record on which to raise the issue and whether raising the issue would result in procedural prejudice to any party. This test is sufficiently flexible while also providing for an appropriate level of restraint to address the tensions inherent in the role of an appellate court.

[42] At all times this discretion is limited by the requirement that raising the new issue cannot suggest bias or partiality on the part of the court. Of essence here is that courts cannot be seen to go in search of a wrong to right. This jurisdiction should be exercised with caution. Appellate courts have the discretion to raise a new issue where justice requires it, but this discretion is restrained in order to maintain the impartiality of the decision-maker as required by our adversarial system.

The risk of injustice is the fundamental consideration in determining whether to raise a new issue. Rothstein J. stated that “[w]here there is a good reason to believe that the result would realistically have differed had the error not been made, this risk of injustice warrants the court of appeal’s intervention.” (para. 45) He further explained this test:

[46] The determination of whether there is good reason to believe that a failure to raise a new issue “would risk an injustice” requires performing a preliminary assessment of the issue. The standard of “good reason to believe” that a failure to raise a new issue “would risk an injustice” is a significant threshold which is necessary in this context in order to strike an appropriate balance between the role of appellate courts as independent and impartial arbiters with the need to ensure that justice is done.

Rothstein J. observed that it is likely that issues identified by appellate courts will often fail to meet the “risk an injustice” factor, especially when both parties are represented by counsel.

Other considerations must also be considered prior to an appellate court raising a new issue: (1) does the court raising the new issue has jurisdiction to consider that issue; (2) is there a sufficient basis in the record on which to resolve the new issue; and (3) would there be any procedural prejudice to either party if the court raised the new issue. In identifying these considerations, Rothstein J. emphasized that an appellate court’s discretion to raise a new issue is not unlimited.

Rothstein J. set out some guidelines to “assist an appellate court in determining what the appropriate procedure should be on a case-by-case basis”:

[57] First, notification of the new issue may occur before the oral hearing, or the issue may be raised during the oral hearing. If the issue is raised during the oral hearing, it may be necessary to grant an adjournment to ensure a full and fair hearing [...]. If the issue is raised prior to the oral hearing, the parties may request an adjournment of the hearing and an extension of the filing deadlines for further written argument. At all times, the court should raise the issue as soon as is practically possible after the issue crystallizes so as to avoid any undue delay in the proceedings.

[58] Second, [...] the notification should not contain too much detail, or indicate that the court of appeal has already formed an opinion; however, it must contain enough information to allow the parties to respond to the new issue. Ultimately, the adequate content of notice will have to be determined on a case-by-case basis. It will be dependent on a number of factors, including the complexity of the issue and the obviousness of the issue on the face of the record.

[59] Finally, [...] the requirements for the response will depend on the particular issue raised by the court. Counsel may wish to simply address the issue orally, file further written argument, or both. As the Crown in this case says, this determination is properly in the hands of both the court and the parties. In my view, the underlying concern should be ensuring that the court receives full submissions on the new issue. If a party asks to file written submissions before or after the oral hearing, in my view, there should be a presumption in favour of granting the request. The overriding consideration is that natural justice and the rule of audi alteram partem will have to be preserved. Both sides will have to have their responses considered.

Lastly, Rothstein J. held that the judge or the panel that raised a new issue should not automatically recuse itself. He stated that “[r]ecusal is not necessary in every case and the need for a new judge or reconstituted panel should be determined on a case-by-case basis. Recusal should be rare and should be governed by the overriding consideration of whether the new issue or the way in which it was raised could lead to a reasonable apprehension of bias.” (para. 60)