What occurred in the Mian case is not unusual: the Appellate panel hearing an appeal seizes on an issue, one not raised in the Appellant’s Factum, and raises it during the course of argument. indeed such an occurrence is a sign that the panel hearing the appeal has read the material and is thinking about the case or at least they have their own ideas about the case. Admittedly, many years ago I won a difficult conviction appeal, based on the near impossible ground of errors in the credibility assessment, when the then Chief Justice Dubin of the Court of Appeal for Ontario seized on a construction of the facts he found absurd, the appeal was thus allowed on the basis of an unreasonable verdict and an acquittal entered. However, there is, as the Mian case warns, a limit to appellate interference, which is very much connected to the concept of judicial deference but also ultimately to the “risk of injustice” should the court not act on its own accord.
The ultimate conclusion should an appellate court not heed this warning is the possibility that the court’s best intentions lead to a reasonable apprehension of bias. Such a scenario, that an appellate court shows bias, is rare indeed. Typically, it is the appellate court considering whether or not the trial judge exhibited the bias, not the appellate court itself falling into the aura of unreasonableness. Although, the SCC did not expand on this possibility, the test in such a scenario, per Justice Cory’s decision in the 1997 RDS case, would require a consideration of “whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias.”
Certainly, one can imagine a situation in which an appellate court ‘s zeal for an issue, not raised by either parties to the appeal – perhaps for good strategic reasons – could lead to such an apprehended bias. As stated by the then Lord Chief Justice of England, Lord Hewart, in the 1924 English case of R v SUSSEX JUSTICES ex p McCARTHY, “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Of course “justice” here in the Mian case is balancing on a fine line as justice must not only be seen to be done in the scope of the appellate review but justice must also be done in the very decision the appellate court makes. In other words, to refer to another aphorism, albeit it a crass one, the court may be “damned if they do and damned if they don’t.” Thus, a reasonable apprehension of justice may arise by the court’s interference in the appellate process by raising a new issue on their own volition, yet if they do not do so, they run the “risk of injustice” should the issue not be independently raised.
In the WG case, the SCC in 1999 did in fact consider possible bias at the appellate court level – in that case on the part of the Newfoundland Court of Appeal. The issue was one of jurisdiction and whether or not the appellate court had the inherent jurisdiction to raise an issue pertaining to the sentence imposed, when the appeal was purely a conviction appeal and neither parties raised the issue of fitness of sentence. To this, the then Chief Justice Lamer, speaking on behalf of the majority, responded with a resounding “no.” However, Chief Justice Lamer did expand on the notion of whether or not, if the court cannot go it alone so to speak, could the court “invite” counsel to raise the issue. On this subsidiary issue the Chief Justice was also clear in stating that such an “invitation” should not be given as the appellate court should not go beyond raising questions during oral argument. Even an independent reference to the issue should not appear in any appellate reasons, although an innocuous comment by the court indicating that the issue of sentence was not raised by either parties on appeal, may be appropriate.
This “approach” by the SCC in this case acknowledges the deference to counsel and counsel’s strategic or “tactical” reasons for raising or not raising an issue on appeal. In the view of the Chief Justice, this approach also “avoids an apprehension of bias.” which the Newfoundland Court of Appeal failed to do when they expressed “discomfort” and “unease” with the sentencing process in the appellate reasons on conviction. In the WG case, the appellate court went further and ordered the parties back to argue the fitness of sentence. Thus, the apprehension of bias crystallized into a very real bias. Interestingly, in this case, the appellate court’s concern was with the harshness of the sentence and thus, presumably, would have shown a bias against the Crown, not the offender.
Finally, take note of the context of Mian, which called out for the SCC to “call out” the appellate court. Mr Mian was acquitted at trial on the basis of violations of his section 10(a) and (b) rights under the Charter. It is therefore in the context of an acquittal that the Court of Appeal of Alberta raised the new appellate issue of defence counsel’s cross-examination as a point of departure for the appellate review. This “new” issue, in the view of the SCC, could not be tied to the trial judge’s decision to acquit and therefore was not a situation where the appellate court was facing that fine balance, I previously mentioned. To add to the list of aphorisms, perhaps, indeed, “context is everything.”