In a judgment released on September 12, 2014, the Supreme Court of Canada established a new test for when an appellate court may interfere with the adversarial system by raising an issue not previously raised by the parties. The decision attempts to strike a balance between two competing roles for appellate courts – independent arbiter and doer of justice.

In R. v. Mian, 2014 SCC 54 defence counsel at trial asked a detective to comment on the veracity of another police officer’s testimony. There was nothing in the record to indicate that the improper cross-examination factored into the decision of the trial judge. It consisted of one question which comprised two lines of the trial transcript. It did not appear that it had any material bearing on the outcome and the Crown Attorney did not object at trial nor raise it as an issue on appeal. Nevertheless, the Alberta Court of Appeal raised this new issue and held that the trial judge appeared to have relied upon it in ruling on an evidence suppression motion. The defendant’s acquittals were set aside and a new trial was ordered.

The narrow question was not whether appellate courts can raise new issues but when and in what circumstances will it be appropriate to do so. Justice Marshall Rothstein, writing for a unanimous court, set out the new test, at paras. 29, 41 and 54: (1) the issue must be a new issue; (2) failing to raise a new issue would risk an injustice; and, (3) the procedure followed in raising the new issue must be fair. He stated, at para. 41, that appellate courts should have the discretion to raise a new issue but this should be done rarely when failing to do so would risk an injustice. Furthermore, the court should consider whether there is a sufficient record on which to raise the issue and whether raising it would result in procedural unfairness to any party.

Justice Rothstein went on to state, at para. 42, that this discretion, “…is limited by the requirement that raising the new issue cannot suggest bias or partiality on the part of the court. Of essence here is that courts cannot be seen to go in search of a wrong to right. This jurisdiction should be exercised with caution. Appellate courts have the discretion to raise a new issue where justice requires it, but this discretion is restrained in order to maintain the impartiality of the decision-maker as required by our adversarial system.”

Justice Rothstein concluded, at para. 63, that although the improper cross-examination raised by the Alberta Court of Appeal qualified as a new issue it failed at the second stage of the new test since there was no evidence to suggest that failing to raise it would risk an injustice. It was therefore not necessary to consider the third stage of the test.

The judgment of the Alberta Court of Appeal was set aside and the trial judge’s acquittals were restored.