Not Too Late

Back in February, I wrote about the Court of Québec’s judgment in R. v. Cloud, 2014 QCCQ 464, in which Justice Patrick Healy sharply criticized the “victim surcharge” which recent amendments to the Criminal Code require courts to impose in all criminal cases on top of any other sentence. Mr. Cloud, the accused, had not challenged the constitutionality of the surcharge, but Justice Healy was convinced of its arbitrariness and disproportionality, and decided to minimize its effects by imposing a nominal fine on Mr. Cloud, which resulted in the surcharge being calculated as a percentage of the fine (and thus a very small amount) rather than at 100$ per summary conviction offence and 200$ for an indictable offence. Since then, other judges in Québec have followed this approach.

The Crown ― whose lawyers in Ontario have described it as a judicial “insurrection” ― has appealed Mr. Cloud’s sentence and a number of others, seeking to have the full surcharge imposed on the offenders concerned. They, in turn, have asked the Québec Court of Appeal for leave to challenge the constitutionality of the “victim surcharge” on the basis that infringes sections 7 and 12 of the Charter. Last week, in R. v. Cloud, 2014 QCCA 1680, a split judgment from which Chief Justice Nicole Duval Hesler dissented, the Court denied leave, saying that the case did not meet the narrow criteria for raising a new (constitutional) issue for the first time on appeal. (Note that this is a somewhat different situation from that which arose in R. v. Mian, 2014 SCC 54, about which I blogged last week; there it was the Court of Appeal itself which had raised the new issue, whereas here it’s a party that seeks to do so.)

Generally speaking, a party cannot raise on appeal an issue that he or she failed to raise at fist instance. But courts of appeal have a discretionary power to make exceptions to that principle, in particular when a change in the state of the law changes after the trial decision is delivered, for example due to a declaration of unconstitutionality issued in a separate case. The test, as the majority judgment and the dissent agree is that there must be enough evidence in the file to allow the appellate court to rule on the new issue, and the failure to raise it at first instance cannot be the result of a strategic choice by the party that seeks to raise it on appeal. On the other hand, the appellate court must also be satisfied that not considering the new issue will not result in an injustice.

Justice Doyon, writing for himself and Justice Hilton, holds that the criteria for allowing the respondents to raise the issue of the “victim surcharge”‘s constitutionality are not satisfied. For one thing, he finds, the respondents made the deliberate decision not to raise the issue at trial, and must now live with the consequences of their choices; although they say their financial situation prevented them from arguing the constitutional point at first instance, there is no reason to believe that it has now changed. For another, the evidence in the record is not sufficient to dispose of the constitutional issue. The Crown argued that it would want to introduce evidence, including testimony, about the respondents’ financial situation and ability to pay the “victim surcharge,” as well as evidence establishing the benefits of the surcharge for the purposes of defending it under s. 1 of the Charter. Finally, there is no injustice in not allowing the respondents to raise an Ontario decision in which a provincial court judge proprio motu declared the “victim surcharge” unconstitutional.

The Chief Justice disagrees with Justice Doyon’s assessment. (I should note that I have worked for Justice Duval Hesler, as she then was, back when I was in law school, and have kept in touch with her; while I generally think the world of her and am, no doubt, biased, I have not discussed this case with her.) The Chief Justice points to the decision of the Ontario Court of Justice in R. v. Tinker, 2014 ONCJ 208, issued well after Justice Healy’s decision in Cloud, which declared the “victim surcharge” unconstitutional. She argues that there is enough evidence regarding the respondents’ financial situation, and that introducing new evidence regarding s. 1 of the Charter on appeal ― or indeed at the Supreme Court ― is not unheard of. The respondents, in her view, did not expressly renounce constitutional arguments at first instance, and the interests of justice require allowing them to raise them on appeal, because of a principle that “the Court shall not be compelled to apply the mandatory surcharge if its constitutionality is seriously challenged” (par. 49). Tinker, while not equivalent to a Supreme Court decision changing the law, supports the seriousness of the respondents’ constitutional challenge.

I believe that the Chief Justice is right, and indeed that there is more to say in support of her conclusion. For one thing, Tinker is no longer the only case in which the “victim surcharge” was found to be unconstitutional ― there is also R. v. Michael, 2014 ONCJ 360, about which I wrote here. (In fairness, yet another decision, R. v. Javier, 2014 ONCJ 361, which I criticized here, refused to follow Michael and upheld the “surcharge.”) For another, it bears noting that neither Tinker or Michael nor Javier (which, admittedly, did not involve a fully-fledged constitutional challenge) suggest that there is serious, or “voluminous” (as Justice Doyon suggests) evidence in support of the Crown’s claim that the surcharge can be justified under s. 1 of the Charter. Justice Paciocco’s reasons in Michael devote a single paragraph to s. 1. Perhaps he blithely ignored the Crown’s submissions on this point but, considering the rest of these reasons (which I described as “somewhat fastidious”), I find that difficult to believe.

In reality, the Crown’s approach to this application continues its record of persistent hypocrisy in the matter of the “victim surcharge.” In some cases, including in the Cloud appeal, as well as and to journalists, its lawyers argue that judges lack the power to circumvent or minimize the “surcharge” by imposing nominal fines. In others, such as Michael, they argue that they may, and indeed ought to, do so in order to avoid the constitutional issue. In the cases where the constitutionality of the “surcharge” was argued, they seem to have failed to introduce any evidence worth discussing to support their position, yet they rely on the need to introduce such evidence in order to avoid debating the constitutional issue at the Québec Court of Appeal. It’s too bad that the majority of the Court of Appeal fell for this trick. One can only hope that the panel that hears the appeal on the merits will be aware of what is going on, and will call the Crown out on it. For that, at least, it is not yet too late.

Raising Issues

Normally, a common law court decides a case brought before it on the issues raised by the parties. But sometimes it can ― and occasionally even has to ― raise an issue on its own. When it can do so, and how it must go about doing this are the main topics discussed in R. v. Mian, 2014 SCC 54, which the Supreme Court decided last week.

The case was an appeal from a decision on a voir dire to exclude incriminating evidence because it took the police more than 20 minutes to inform Mr. Mian of the reason for his arrest, and still longer for them to inform him of his rights. The Alberta Court of Appeal, however, was concerned about a question which the defence lawyer asked one of the police officers involved during cross-examination. The Crown hadn’t objected to the question at the time, and didn’t raise the matter in its submissions on appeal, but the Court of Appeal invited the parties to make written submissions on the matter and asked them to address it at the hearing, eventually allowing the appeal on the basis that the judge of first instance had failed to recognize the question’s impermissibility and that it influenced his reasoning. And so the main question for the Supreme Court was whether the Court of Appeal was right to raise this issue on its own.

As a general matter, says Justice Rothstein, writing for the unanimous Court, appellate courts may raise new issues. But it is a power they must exercise sparingly.

First though, it is important to understand what does and what doesn’t count as a new issue. Justice Rothstein explains (at par. 30) that

[a]n issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties. Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties … and cannot reasonably be said to stem from the issues as framed by the parties.

However, questions asked at oral argument do not necessarily raise new issues, whether they address “components of the grounds of appeal put forward by the parties,” including by probing them in greater detail and by raising sub-issues, “or … go outside of those grounds in an aim to understand the context, statutory background or larger implications,” which “may be necessary for the court to gain a more complete understanding of the issues at hand” (par. 32). A further category of issues that will not be considered as “new” are those “that form the backdrop of appellate litigation, such as jurisdiction, whether a given error requires a remedy and what the appropriate remedy is the standard of review” (par. 34). The idea here seems to be that since such issues can arise on any appeal, “parties should not require notice to address them” (par. 34).

If it identifies a “new” issue, an appellate court must decide whether to raise it for the parties. The two competing considerations here are the integrity of an adversarial system that lets the parties make their own cases and, crucially for Justice Rothstein, thereby allows “judicial decision-makers remain independent and impartial and are seen to remain independent and impartial” (par. 39), and the need to actually do justice under the law, which sometimes requires intervening into the adversarial debate. Balancing these considerations, Justice Rothstein concludes that an appellate court may raise a new issue only if failing to do so will risk an injustice, and only if it can do so without appearing biased. He explains that “[o]f essence here is that courts cannot be seen to go in search of a wrong to right” (par. 42).

Failing to raise an issue will risk an injustice when “there is good reason to believe that the result would realistically have differed had the error not been made” (par. 45). But, Justice Rothstein cautions, there will not often be good reason to think so. While this can happen more frequently when one of the litigants is self-represented, “[i]t will only be in rare cases that counsel on both sides will have failed to identify an issue that would realistically have affected the result” (par. 48). In addition, the appellate court must be sure of having the jurisdiction to consider the issue, of having a sufficient factual record on the basis of which to do so, and of being able to avoid imposing a “procedural prejudice” (par. 52) on one of the parties.

To avoid procedural injustice, an appellate court “must make the parties aware that it has discerned a potential issue and ensure that they are sufficiently informed so they may prepare and respond” (par. 54), whether the response is written, oral, or both. At all times, “natural justice and the rule of audi alteram partem will have to be preserved” (par. 59). And, while courts should be careful to avoid giving the impression, in the notice they give to the parties, of having prejudged the issue, it is not necessary, save in rare cases, for a judge or panel who raised a new issue to recuse themselves.

Practically, this is all logical, sensible stuff, although I think there is some tension between Justice Rothstein’s suggestion that an appellate court may intervene in the adversarial process when it sees a risk of error that affects the outcome, and his claim that such cases will be very rare. Is the claim really right? Is it the case that lawyers will seldom miss material issues? I hope that this is indeed so.

On a theoretical level though, I wonder whether Justice Rothstein is right that the reason why courts should be reluctant to raise new issues is the danger of appearing biased. That’s surely a part of it. But I would have thought that no less, and perhaps more, important is the need to limit judicial power. As Fabien Gélinas argues in this fascinating paper, various rules that prevent courts from considering issues ― such as the rules on standing, ripeness/mootness, and justiciability ― all serve to circumscribe the courts’ power, justifying the well-known description of the judiciary as the “least dangerous branch” of government. I thought that the presumption against raising new issues serves the same purpose. Justice Rothstein suggests otherwise.

Be that as it may, he goes on to find that in this case, there was no need to raise the issue of the impermissible cross-examination question. It was not as significant as the Court of Appeal made it out to be, and Crown lawyers clearly did not think it was. The Court of Appeal should not have second-guessed them.