Case information

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Criminal law - Trial - Evidence - Admissibility - Prior statements - Miscarriage of justice - Whether the majority of the Court of Appeal erred in allowing the appeal on the basis that a miscarriage of justice had occurred even though that issue had not been explicitly formulated as a ground of appeal - Whether the majority of the Court of Appeal erred in deciding that the trial judge improperly used prior statements - Whether the majority of the Court of Appeal erred in holding that there had been a miscarriage of justice - Criminal Code, R.S.C. 1985 c. C-46, s. 686(1)(a)(iii).

The respondent E.M.W. was convicted of sexually assaulting his daughter. He was sentenced to two years’ imprisonment. He appealed his conviction on two grounds. First, he argued that the trial judge erred in evaluating the credibility, reliability and sufficiency of his testimony. Second, he argued that the trial judge erred in his application of the standard of the Crown’s burden of proof, particularly in relation to the evaluation of his testimony and other evidence. Applying s. 686(1)(a)(iii) of the Criminal Code, the majority of the Court of Appeal allowed the appeal, quashed the conviction and ordered a new trial. In the majority’s view, the conduct of the trial and the manner in which the evidence was elicited was unfairly prejudicial to the respondent and amounted to a miscarriage of justice. Fichaud J.A., dissenting, would have dismissed the appeal. He found that the issues of inadmissibility of evidence and miscarriage of justice were not raised by the respondent and were therefore not before the court. He did, however, address the grounds of appeal formulated by the respondent. He found that the trial judge made no error in his articulation or application of the R. v. W.(D.) principles or in his assessment of the evidence, its reliability or the witnesses’ credibility. In his view, the trial displayed “a fizzled defence theory, not a miscarriage of justice”.