In R. v. P.G., the Court of Appeal for Ontario held that the Crown must explicitly invoke the curative proviso in subparagraph 686(1)(b)(iii) of the Criminal Code, absent which an appellate court cannot apply it to uphold a conviction.

Background

The appellant was convicted of sexual assault, and his conviction was upheld by the summary conviction appeal court. Significantly, the appeal judge agreed with the appellant that the trial judge had improperly curtailed the defence’s cross-examination of the complainant. However, he concluded that the error had not resulted in any substantial wrong or miscarriage of justice, and therefore applied the curative proviso to uphold the appellant’s conviction.

The appellant then sought leave to appeal to the Court of Appeal. He argued that the appeal judge had erred by applying the curative proviso on his own motion and without the Crown asking him to apply it. He also argued that the appeal judge erred by not finding that the trial judge had displayed a reasonable apprehension of bias. Justice MacFarland, on behalf of a unanimous Court, granted leave to appeal and allowed the appeal on both grounds.

Crown must explicitly invoke curative proviso

Justice MacFarland noted that “[t]he law is clear that it is not open to an appellate court to apply the curative proviso on its own motion,” and that the proviso should be applied only upon submission from a party. The transcripts for the first appeal revealed that the Crown had never invoked the proviso, and, therefore, it was an error for the appeal judge to apply it.

Justice MacFarland rejected the Crown’s argument that it had implicitly relied on the proviso during the summary conviction appeal. According to Justice MacFarland, accepting that argument it would have meant that “the Crown could rely on the proviso in every case without the necessity of making an explicit argument that it was relying on the proviso.” That would effectively relieve the Crown of the burden to invoke the proviso it bore according to the well-established case law.