In brief oral reasons from the bench, the Supreme Court of Canada recently held in R. v. Wakefield, 2019 SCC 26 that it was an error for the Court of Appeal to make a finding of fact that the trial judge had declined to make. The trial judge convicted the accused of second degree murder, but expressly refrained from finding that the accused himself had stabbed the victim. That finding should have been an essential fact to support the murder conviction, and, according to the Supreme Court, it was not open for the Court of Appeal to make that factual finding to save the conviction.
We address findings of fact by appellate courts at §2.39 to §2.42 of Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition. Appellate courts can and do make factual findings in appropriate circumstances taking into account the interests of justice and the practicality of the appellate court assessing the evidence. For example, see Madsen Estate v. Saylor, 2007 SCC 18 and the majority in Hollis v. Dow Corning Corp.,  4 S.C.R. 634. However, the Court’s short reasons in Wakefield are reminiscent of the following passage from Sopinka J.’s dissent in Hollis:
[…] in a case in which a trial judge fails to make factual findings which are essential to resolve an issue, a court of appeal is extremely reluctant to assume the role of the trial judge. In such circumstances, it is more hazardous to venture an opinion that the trial judge would not have had an advantage when there has been no demonstration as to how the trial judge availed himself or herself of the advantage. More importantly, there is considerable support for the view that the party affected is entitled to a new trial virtually as of right. […] [emphasis added]
Wakefield does not cite Hollis (either the majority or dissent), nor did the factums before the Court. Hollis was, of course, a civil appeal. Nevertheless, the Court’s conclusion in Wakefield that the Court of Appeal “erred” in making a factual finding that the trial judge declined to make potentially gives new lease to this aspect of Sopinka J.’s dissent.
Interestingly, in Wakefield, the parties agreed that they were content with the Supreme Court substituting a verdict of manslaughter rather than ordering a new trial. The Court accordingly exercised the powers under s. 686(1)(b)(i) of the Criminal Code to dismiss the appeal and substitute a verdict of manslaughter.