Canadian Criminal Procedure and Practice/Appeals/Standard of Review

General Principles All reviewable decisions made by a judge can be seen as answering one of three categories of questions:Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at paras. 8, 10, 11, 12, 26, 31, 39, 72, and 101 questions of law: what is the correct legal test to be applied questions of fact: what took place between the parties questions of mixed law and fact: whether the facts satisfy the correct legal testssee also Saint-Jean v. Mercier, [2002] 1 S.C.R. 491 All questions of law are to be reviewed on a standard of "correctness".Housen v. Nikolaisen , [2002] 2 S.C.R. 235 at para. 8 R. v. Mooney, 2005 NLCA 49 at para. 18 All questions of fact are reviewed on a standard of "palpable and overriding error". All findings of facts are questions of fact.R. v. Shepherd, 2009 SCC 35 A question of law inquire into the "correct legal test" to be applied for a particular legal issue or "the application of a legal standard" to facts.Pushpanathan v. Canada (Minister of Citizenship and Immigration) , [1998] 1 S.C.R. 982 at para. 37 Saint-Jean v. Mercier, [2002] 1 S.C.R. 491 at para. 33 R. v. Araujo , [2000] 2 S.C.R. 992 at para. 18 R. v. Shepherd, 2009 SCC 35 R. v. Brooks, 2000 SCC 11 This also includes the interpretation of a legal standardR. v. Ewanchuk , [1999] 1 S.C.R. 330 at para. 21 and the application of a standard to settled facts.R. v. Mara, [1997] 2 S.C.R. 630 at paras. 18-19 However, where the facts are in dispute, it is most likely a question of mixed fact and law.R. v. Grouse 2004 NSCA 108 at para. 44 Where the question is neither purely a question of law or question of fact, then it is considered a question of ""questions of mixed law and fact". 2 Questions of Law The admissibility of photos is reviewed on the standard of correctness.R v Blea, 2012 ABCA 41, [2012] AJ No 106 at para 31 The issue of the exclusion of evidence under s.24(2) is a matter of law, however, one with “considerable deference”. see R. v. Grant at para. 86, and R. v. Beaulieu, 2010 SCC 7 at para. 5 Reviewing a judge’s decision a whether there was a Charter breach is determined on the standard of correctness.R v Farrah 2011 MBCA 49 at 7 However, the evidence underlying the Charter matter can only be reviewed on the standard of “palpable and overriding error”.ibid The issue of whether the facts amount to "reasonable and probable grounds" is a question of law. R. v. Shepherd 2009 SCC 35, 309 D.L.R. (4th) 139 at para. 18, 20 ("[w]hile there can be no doubt that the existence of reasonable and probable grounds is grounded in the 'factual findings' of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law") Errors in law require the appellant to establish not only an error but that "the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal". But does not need to go so far as to convince the court that "the verdict would necessarily have been different" see R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 at para. 14 R. v. Duguay, 2007 NBCA 65 at paras. 26-27 A Crown appeal of an acquittal, errors in law include:see R. v. J.M.H., 2011 SCC 45 at 24-32 making a finding of fact for which there was no evidence; where the legal effect of findings of fact or undisputed fact raises a question of law; an assessment of the evidence based on a wrong legal principle; and a failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence. The following have been found to be questions of law and so reviewable on the standard of correctness: Admissibility of EvidenceR. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.) R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, at para. 184; R. v. Harper, [1982] 1 S.C.R. 2 Failure to consider admitted evidence;R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 at 20 the relevance of evidence;R. v. Mohan, [1994] 2 S.C.R. 9 at para. 18 Interpretation of a section of the Criminal Code;R. v. Goulet, 2011 ABCA 230 at para. 7 R. v. McColl, 2008 ABCA 287 at para. 8 the interpretation of a "legal standard" R. v. Araujo, [2000] 2 S.C.R. 992 at para. 18 Whether someone was unlawfully detained under s. 9 of the Charter; R v Shepherd, 2009 SCC 35 (CanLII), 2009 SCC 35, [2009] 2 SCR 527 at para 20 whether an utterance is a "threat to cause bodily harm"R. v. Felteau 2010 ONCA 821 whether the judge correctly put a defence to a jury;R v Tran, 2010 SCC 58 at 40 whether there is an air of reality to a defence;R. v. Cinous (2002), 162 C.C.C. (3d) 129 at para. 55 a directed verdictR. v. Barros (2011), 273 C.C.C. (3d) 129 (S.C.C.), at para. 48 misdirection of a jury (not including non-direction of a jury)R. v. Luciano 2011 ONCA 89 at para. 70 A dissenting court of appeal judge on the issue of unreasonable verdictR. v. Yebes, [1987] 2 S.C.R. 168 R. v. Biniaris, [2000] 1 S.C.R. 381 whether corroboration is needed to establish a fact.R v Hubin, [1927] S.C.R. 442 R v Steele (1924), 42 C.C.C. 375 (SCC) admission of inadmissible evidence through improper cross-examination questionsR. v. Mian 2012 ABCA 302 (CanLII) the reasonableness of grounds, such as in forming grounds of detentionR. v. Moore, 2012 BCCA 400 (CanLII) 2 Questions of Fact Where a palpable and overriding error has been found, the judge may intervene with its view of the evidence as well as draw inferences based on that evidence.L. (H.) v. Canada (Attorney General) 2005 SCC 25 The following have been found to be questions of fact and so reviewable on the palpable and overriding error: Findings of credibilityR. v. Brooks, 2000 SCC 11 whether an inference can be drawn from established factsR v Thomas, [1952] 2 S.C.R. 344 A judge's assessment of evidence, such as whether a judge can rely on a document for the truth of its contents, is reviewed on a standard of palpable and overriding error that the finding of fact played an essential part in the reasoning.R v Lohrer, 2004 SCC 80, [2004] 3 SCR 732 at para 1 R v Lee, 2010 ABCA 1 at para 8 R v O'Neil, 2012 ABCA 162 2 Question of Mixed Fact and Law The following have been considered questions of "mixed fact and law": A defence appeal of conviction to withdraw a guilty pleaR v Miller 2011 NBCA 52 at 6 Voluntariness of a statementR. v. Petri, 2003 MBCA 1 (CanLII) at para. 35 2