The word “civil” does not appear once in the criminal case of  R v Mian, 2014 SCC 54. But this is still an important decision for civil litigators with an appellate practice, because of Justice Rothstein’s explanation of when the court—not counsel—may properly raise a new issue on appeal. The case acts as a sort of companion to Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, Justice Rothstein’s other recent decision on appeal procedure.

Background

The accused in Mian was acquitted of two drug-related offences after the trial judge found that the police violated his Charter rights when they did not inform him why he was detained or of his right to counsel, and excluded the evidence. The Crown appealed. At the Court of Appeal’s prompting, both defence and Crown made further written submissions on whether defence counsel had improperly cross-examined one of the police witnesses, and whether this erroneously affected the trial judge’s decision to exclude the evidence.

The Court of Appeal’s intervention was inappropriate, according to the Supreme Court of Canada: “Although appellate courts have the jurisdiction to raise new issues, the Court of Appeal did not appropriately raise the issue of improper cross-examination in this case.”[1]

When new means new

Before reaching this conclusion, the Court had to give some objective content to what “new” really means in this context.

The test for a truly “new” issue is whether the court has raised a reason for “reviewing the decision under appeal for error”[2] that the parties have not raised themselves, such that the court has to proactively invite further submissions on the point:[3]

Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties (see Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at para. 39) and cannot reasonably be said to stem from the issues as framed by the parties. It follows from this definition that a new issue will require notifying the parties in advance so that they are able to address it adequately.

An appeal court should only raise a truly new issue “when failing to do so would risk an injustice,” keeping in mind whether the record is sufficient to support raising the issue, and whether it would cause “procedural prejudice to any party.”[4] (Interestingly, Justice Rothstein noted that this threshold is unlikely to be met where both parties have counsel.)[5]

The following areas will generally not be considered “new” issues triggering the need for further submissions:

  • The Court’s questions on all aspects of the grounds of appeal, including inquiries meant “to understand the context, statutory background or larger implications.”[6] As Justice Rothstein said: “Nothing in these reasons should be construed as limiting the ability of appellate judges to ask any question in the course of the oral hearing.”[7]
  • Intervention “to assist self-represented litigants to ensure that the proceedings are fair,” as long as the court remains impartial.[8]The risk of injustice to self-represented litigants is acute in civil cases as well as criminal, and Justice Rothstein’s statement serves as an endorsement for the valuable assistance that courts of appeal do their best to provide in this respect.

Points applicable to civil appeals

The appellate court must do two common-sense things when it wants to raise a new issue:

  1. provide notice to the parties as soon as possible after the new issue “crystallizes,” and
  2. give the parties an adequate opportunity to respond.[9] Whether the response comes through written or oral submissions, or both, will depend on the nature of the case.[10]

The Supreme Court’s reasons provide “dos” and “don’ts” to appeal courts, and by extension guidance for parties / counsel trying to respond to, or even challenge, a court’s attempt to raise a new issue:

  • Be prepared in all cases, whether new issues are floated or not, to discuss jurisdiction; the standard of review; and appropriate remedies, as these are “issues that form the backdrop of appellate litigation.”[11]
  • However, exercise caution when submitting that the Court of Appeal has the “inherent jurisdiction” to consider an issue. Justice Rothstein made the blanket statement that: “Courts of appeal are statutory bodies and there is no inherent jurisdiction in any appeal court.”[12] (Although, for historical reasons, the door on this debate may not be entirely shut in Nova Scotia: See e.g. MacQueen v Canada (Attorney General), 2014 NSCA 73.)
  • Seek an adjournment of appropriate length, whether the issue is raised before or during the hearing.[13]
  • Make oral submissions and also request the opportunity to make full written submissions if not otherwise offered; there is a “presumption in favour of granting” a party’s request to file further written submissions, whether before or after the hearing.[14] As Justice Rothstein stated: “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.”[15]
  • Propose a fair order of submissions. In Mian itself, the Court of Appeal had ordered the respondent to file his supplementary factum ahead of the Crown, even though the Crown was the appellant. But while this order may not have been “usual” or “perfect,” there had been no objection before the Court of Appeal and the process was fair overall.[16]
  • Point to the possibility of “procedural prejudice” if necessary, meaning prejudice that “cannot be addressed through adjustments to the process.”[17] The potential for procedural prejudice means the court will not be able to pursue the new issue with counsel, although Justice Rothstein did not  address what kind of proof of prejudice might be required.
  • Raise a reasonable apprehension of bias argument, if the situation suggests the test—which carries a high threshold—could be met. The possibility of “bias or partiality” is an overarching limit on the appeal court’s jurisdiction to raise a new issue.[18] If “the new issue or the way in which it was raised could lead to a reasonable apprehension of bias” then the court (or the particular judge) may have to take the rare step of recusing itself.[19]

Conclusion

The adversarial system makes the parties responsible for presenting their case, and judges responsible for independently and impartially deciding the outcome.[20] Justice Rothstein in Mian accepted the Attorney General of Alberta’s submission that “for ‘justice in fact to be done,’ judges must sometimes intervene in the adversarial debate.’”[21] The reality is that sides of the Bar rely on each other, and the dialogue that can exist between the Court and counsel is one of the best, most fruitful parts of the appeal process.

The ‘dos’ and ‘don’ts’ from Mian should not come as a surprise to litigators used to the cut and thrust of conversations with the Court, but the case helps ensure lawyers and judges stay within the proper limits of their roles – and ensure that justice is done.