R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86

Mohamed Ameerulla Khan Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Khan

Neutral citation: 2001 SCC 86.

File No.: 27395.

2000: December 12; 2001: December 7.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for manitoba

Criminal law -- Appeals -- Powers of court of appeal -- Error of law -- Miscarriage of justice -- Curative proviso -- Whether trial judge erred in refusing to order mistrial where jury was provided with transcripts containing submissions made in absence of jury -- Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1).

After a trial before a judge and jury, the accused was convicted of the first degree murder of his wife. During the course of its deliberations, the jury requested transcripts of the pathologist’s testimony. Approximately six and a half hours after the transcripts were delivered to the jury, defence counsel discovered that the copy of the transcript given to the jury inadvertently contained the record of matters discussed in the absence of the jury during a voir dire. As such matters should have been expunged, defence counsel moved for a mistrial on the basis that the proceedings had become tainted and the trial was unfair. The defence argued that the jury had learned that the accused had made comments that were ruled inadmissible. In the defence’s view, the jury would speculate as to those comments and would draw an adverse inference against the accused. The trial judge denied the request for a mistrial. The offending transcripts were retrieved and the jury was provided with clean copies. The trial judge cautioned the jury that they were to rely solely on the evidence that was put before them. Once the jury returned a guilty verdict of first degree murder, the trial judge requested further submissions regarding the possibility of granting a mistrial. After submissions by both counsel, the trial judge again declined to declare a mistrial. The accused’s appeal to the Court of Appeal was dismissed.

Held: The appeal should be dismissed.

Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Binnie and Arbour JJ.: The question in this case is not whether the giving of the unedited transcripts to the jury was a miscarriage of justice or a procedural irregularity, but whether the trial judge made an error of law in refusing to declare a mistrial.

Apart from unreasonable verdict cases, most appeals against conviction are based on errors of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code. In some cases, when the court has concluded that the error alleged was at most an error of mixed fact and law, it has characterized the issue as falling under s. 686(1)(a)(iii), that is, a miscarriage of justice. In such a case, further use of the proviso in s. 686(1)(b)(iii) is obviously precluded and the appeal must be allowed. The appeal in this case is entirely governed by the provisions of ss. 686(1)(a)(ii) and 686(1)(b)(iii). There are essentially two classes of errors that have led to a proper application of the curative proviso: “harmless errors”, or errors of a minor nature having no impact on the verdict; and serious errors that would justify a new trial but for the fact that the evidence was so overwhelming that no substantial wrong or miscarriage of justice occurred despite the error. In every case, if the reviewing court concludes that the error led to a denial of a fair trial, the court may properly characterize the matter as one where there was a miscarriage of justice, in which case no remedial provision is available and the appeal must be allowed.

This case does not require an assessment of the overall strength of the Crown’s case at trial. When asked to declare a mistrial, the trial judge was essentially asked whether it was likely that the exposure by the jury to the tainted transcripts could have affected the jury to the point that the entire trial was compromised and that no remedy other than a new trial was available. Read in full, the offending passage in the transcripts handed to the jury refers to several matters that were not in evidence when the argument took place in the absence of the jury. A fair assessment of the impact that the transcript could have had on the jury must be made on the assumption that the jury read the transcript and understood that counsel for the accused was concerned that the jury should not find out that his client had made statements that the court had ruled inadmissible. This is how the trial judge approached the issue, and that is why she cautioned the jury as she did. She did not identify specifically the impugned passages, so as not to aggravate the damage, if any, but she clearly instructed the jury to disregard any references to matters that were not properly in evidence before them. The trial judge was obviously concerned with the effect and consequences of what had transpired and she took seriously the application for a mistrial. However, she made no error when she exercised her discretion to deny the motion for a mistrial, nor did she err in declining to enter a mistrial after the jury had returned its verdict. The trial judge was in a privileged position to assess the possible impact of the mishap on the jury, and the effectiveness of the sharp warning that she issued. There is no basis upon which it could be said that she was wrong in that judgment call. The information before the jury was at most an innuendo. Taking the case at highest from the accused’s point of view, the admonition issued by the trial judge to the jury was sufficient to remedy any ill effect that the unedited transcripts might have had on the jury. As the trial judge did not err in rejecting the motion for a mistrial, there is no need to turn to the proviso.

Per LeBel J.: The question before this Court is whether the conviction should be reversed because either an “error of law” or a “miscarriage of justice” has occurred and, if so, whether the curative proviso should be applied. In order for a verdict to be reversed under s. 686(1)(a)(ii) of the Code, it is not sufficient to demonstrate that a legal mistake has occurred. The judgment must have been based or possibly based on that mistake, so as to prejudice the accused. The other situations that may justify the intervention of a court of appeal fall into a residual category. Section 686(1)(a)(iii) refers to miscarriages of justice, which cover irregularities other than the errors of law mentioned in s. 686(1)(a)(ii) and which may have rendered the trial unfair or created the appearance of unfairness for the accused. Although ss. 686(1)(a)(ii) and 686(1)(a)(iii) are distinct, they are nevertheless closely related. Both involve situations where an irregularity has occurred during the course of the trial. Whether the defect at trial appears to have been an error of law or an irregularity falling within the residual category of miscarriage of justice, the circumstances must be considered to see if the error was merely peripheral or could have played a significant role in the legal validity of the verdict or rendered the trial unfair, in reality or in appearance. If the error of law could not have prejudiced the accused, the conviction will be upheld. Reaching a conclusion in that respect will require a balancing taking into account the circumstances of the case and, more particularly, the nature and impact of the error of law. In that regard, the analysis under s. 686(1)(a)(ii) may call upon similar considerations as under s. 686(1)(a)(iii).

An irregularity can be said to constitute a miscarriage of justice when the irregularity was severe enough to render the trial unfair or create the appearance of unfairness. Contrary to the analysis under the proviso, the emphasis is not so much on the final verdict and the overall strength of the evidence against the accused, but rather on the gravity of the irregularity and the effect it may have had on the fairness, or appearance of fairness, of the trial. The gravity of irregularities which may occur must inevitably be evaluated by courts on a case‑by‑case basis. This being said, certain elements can provide reference points in determining whether a miscarriage of justice has occurred. First, one should ask whether the irregularity pertained to a question that was central to the case against the accused. An irregularity that is related to a central point of the case is more likely to be fatal than one concerning a mere peripheral point. Second, the court of appeal should consider the relative gravity of the irregularity: how much influence it could have had on the verdict; the chances that the apprehended detrimental effect of the irregularity did in fact occur; and the likely severity of these detrimental effects on the accused’s case. When the court considers the gravity of the error, it should also consider the possible cumulative effect of several irregularities during the trial. Third, one should be mindful of whether the trial was by jury or by a judge sitting alone. Sometimes, irregularities can have a more severe impact on the fairness of the trial when they occur during a trial before a judge and a jury. Fourth, one should ask whether the irregularity may have been remedied, in full or in part, at the trial. Fifth, the effect of the irregularity on the fairness of the trial and the appearance of fairness should be considered. Sixth, the attitude of defence counsel if and when he was confronted with the irregularity may have an impact. If defence counsel had an opportunity to object to the irregularity and failed to do so, this militates in favour of finding that the trial was not unfair.

The second stage of the analysis is the applicability of the curative proviso. In order to invoke s. 686(1)(b)(iii) successfully, the Crown must demonstrate that any reasonable judge or jury would have rendered the same verdict. Even though an important error of law could have influenced the decision, it would not be appropriate to reverse the conviction when the evidence is so overwhelming against the accused that it would inevitably lead to the same result. Similarly, when the court of appeal finds that the evidence against the accused would inevitably have led to the same result, it can uphold a conviction despite having found that a procedural irregularity not amounting to a miscarriage of justice had occurred. Regardless of whether the proviso is used to cure an error of law or a procedural irregularity not amounting to a miscarriage of justice, it may be used only when the conviction was inevitable.

The leak of the tainted transcript to the jury was certainly an error or an irregularity. This mistake does not seem to be in the nature of an error of law. The judge did not make a decision on a question of law that was among the bases of a conviction. The error was more akin to a procedural irregularity that happened by accident. Thus, as this case does not seem to fall squarely within the error of law category, this becomes a matter to be examined under the residual category of procedural irregularity. The irregularity did not amount to a miscarriage of justice. First, it did not relate to a point that was particularly central in law or in fact to the case against the accused. Second, the irregularity was not of significant importance. The fact that the trial was held before a judge and jury militates in favour of a finding of unfairness. However, all doubts concerning the unfairness or appearance of unfairness of the trial are put to rest when the remedy chosen by the judge when she realized that the tainted transcripts had been leaked to the jury is considered.

Since no miscarriage of justice occurred, it is unnecessary to examine whether the conviction could be saved under the curative proviso.

Cases Cited

By Arbour J.

Referred to: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27; R. v. Cloutier (1988), 1988 199 (ON CA), 43 C.C.C. (3d) 35; R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91; R. v. Fenton (1984), 1984 633 (BC CA), 11 C.C.C. (3d) 109; R. v. Karpinski, 1957 9 (SCC), [1957] S.C.R. 343; R. v. Simons (1976), 1976 1369 (ON CA), 30 C.C.C. (2d) 162; R. v. Sarazin (1978), 1978 2335 (PE SCTD), 39 C.C.C. (2d) 131; R. v. Dwyer, 1979 53 (SCC), [1980] 1 S.C.R. 481, rev’g (1978), 1978 2513 (ON CA), 42 C.C.C. (2d) 83; Brodie v. The King, 1936 1 (SCC), [1936] S.C.R. 188; R. v. Vallee, 1969 1065 (BC CA), [1969] 3 C.C.C. 293; R. v. Major, 1976 173 (SCC), [1977] 1 S.C.R. 826; R. v. Côté, 1977 1 (SCC), [1978] 1 S.C.R. 8; Elliott v. The Queen, 1977 209 (SCC), [1978] 2 S.C.R. 393; Kipp v. Attorney‑General for Ontario, 1964 20 (SCC), [1965] S.C.R. 57; R. v. Sheets, 1971 130 (SCC), [1971] S.C.R. 614; R. v. Meunier, 1966 50 (CSC), [1966] S.C.R. 399; R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694; R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1; Korponay v. Attorney General of Canada, 1982 12 (SCC), [1982] 1 S.C.R. 41; Trenholm v. Attorney‑General of Ontario, 1940 2 (SCC), [1940] S.C.R. 301; Doyle v. The Queen, 1976 11 (SCC), [1977] 1 S.C.R. 597; R. v. Krannenburg, 1980 179 (SCC), [1980] 1 S.C.R. 1053; R. v. Joinson (1986), 1986 1195 (BC CA), 32 C.C.C. (3d) 542; Bell (Re), [1988] B.C.J. No. 1897 (QL); Fanjoy v. The Queen, 1985 53 (SCC), [1985] 2 S.C.R. 233; R. v. B. (L.C.) (1996), 1996 937 (ON CA), 104 C.C.C. (3d) 353; R. v. Silvini (1991), 1991 2703 (ON CA), 68 C.C.C. (3d) 251; R. v. Cameron (1991), 1991 7182 (ON CA), 64 C.C.C. (3d) 96; Colpitts v. The Queen, 1965 2 (SCC), [1965] S.C.R. 739; Wildman v. The Queen, 1984 82 (SCC), [1984] 2 S.C.R. 311; R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697; R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599; Chibok v. The Queen (1956), 1956 541 (SCC), 24 C.R. 354; R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29; R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290; R. v. Ménard, 1998 790 (SCC), [1998] 2 S.C.R. 109; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314; R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829; R. v. MacGillivray, 1995 139 (SCC), [1995] 1 S.C.R. 890; R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516; United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901; Gunn v. The Queen, 1972 174 (SCC), [1974] S.C.R. 273; R. v. Klatt (1994), 1994 ABCA 332, 94 C.C.C. (3d) 147; R. v. Wong (1992), 1992 899 (BC CA), 12 B.C.A.C. 211; R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909; R. v. Nijjar, 1997 17019 (SCC), [1998] 1 S.C.R. 320; Alward v. The Queen, 1977 166 (SCC), [1978] 1 S.C.R. 559; Ambrose v. The Queen, 1976 201 (SCC), [1977] 2 S.C.R. 717; Dufresne v. La Reine, 1987 896 (QC CA), [1988] R.J.Q. 38; R. v. Welch (1980), 1980 2295 (SK CA), 5 Sask. R. 175.

By LeBel J.

Referred to: R. v. Duke (1985), 1985 ABCA 187, 22 C.C.C. (3d) 217; R. v. Watson (1991), 1991 344 (BC CA), 4 B.C.A.C. 253; R. v. Armstrong, 1969 1001 (NS CA), [1970] 1 C.C.C. 136; R. v. R. (R.) (1994), 1994 8728 (ON CA), 91 C.C.C. (3d) 193; Emkeit v. The Queen, 1972 169 (SCC), [1974] S.C.R. 133; R. v. Paterson (1998), 1998 14969 (BC CA), 102 B.C.A.C. 200; R. v. Cameron (1991), 1991 7182 (ON CA), 64 C.C.C. (3d) 96; Fanjoy v. The Queen, 1985 53 (SCC), [1985] 2 S.C.R. 233; R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35; R. v. Curragh Inc., 1997 381 (SCC), [1997] 1 S.C.R. 537; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80; R. v. G. (S.G.), 1997 311 (SCC), [1997] 2 S.C.R. 716; R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562; R. v. Hertrich (1982), 1982 3307 (ON CA), 67 C.C.C. (2d) 510; Olbey v. The Queen, 1979 61 (SCC), [1980] 1 S.C.R. 1008; Cathro v. The Queen, 1955 46 (SCC), [1956] S.C.R. 101; R. v. Ferguson (2000), 2000 5658 (ON CA), 142 C.C.C. (3d) 353, rev’d [2001] 1 S.C.R. 281, 2001 SCC 6; R. v. Martineau (1986), 1986 4730 (QC CA), 33 C.C.C. (3d) 573; R. v. Lessard (1992), 1992 3103 (QC CA), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205; R. v. Taillefer (1995), 1995 4592 (QC CA), 100 C.C.C. (3d) 1, 40 C.R. (4th) 287; R. v. Siu (1998), 1998 4639 (BC CA), 124 C.C.C. (3d) 301; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391; R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670; Imrich v. The Queen, 1977 27 (SCC), [1978] 1 S.C.R. 622; Lewis v. The Queen, 1979 19 (SCC), [1979] 2 S.C.R. 821; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129; R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22; R. v. Terceira (1998), 1998 2174 (ON CA), 123 C.C.C. (3d) 1, aff’d [1999] 3 S.C.R. 866; R. v. P. (G.) (1996), 1996 420 (ON CA), 112 C.C.C. (3d) 263; R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293; R. v. Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11; R. v. Cleghorn, 1995 63 (SCC), [1995] 3 S.C.R. 175; R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599; R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909; Meunier v. The Queen (1965), 1965 1161 (QC CA), 48 C.R. 14, aff’d [1966] S.C.R. 399; R. v. Cloutier (1988), 1988 199 (ON CA), 43 C.C.C. (3d) 35; R. v. Simard (1989), 36 Q.A.C. 74; R. v. Fabre (1990), 1990 2827 (QC CA), 46 Q.A.C. 133; R. v. Deyardin (1997), 1997 9988 (QC CA), 119 C.C.C. (3d) 365, [1997] R.J.Q. 2367; Primeau v. La Reine, 2000 11306 (QC CA), [2000] R.J.Q. 696; Taillefer v. La Reine, 1989 863 (QC CA), [1989] R.J.Q. 2023.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, s. 440.1 [now s. 485].

Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) [am. c. 27 (1st Supp.), s. 145; am. 1991, c. 43, s. 9 (Sch., item 8)].

Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 145.

Authors Cited

Béliveau, Pierre, et Martin Vauclair. Traité général de preuve et de procédure pénales, 8^e éd. Montréal: Thémis, 2001.

Cohen, Stanley A. “Controlling the Trial Process: The Judge and the Conduct of Trial” (1977), 36 C.R.N.S. 15.

Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, vol. 2, 2nd ed. Aurora, Ont.: Canada Law Book, 1987 (loose‑leaf updated August 2001, release 49).

McKinnon, Gil D. The Criminal Lawyers’ Guide to Appellate Court Practice. Aurora, Ont.: Canada Law Book, 1997.

Mewett, Alan W. “No Substantial Miscarriage of Justice”. In Anthony N. Doob and Edward L. Greenspan, eds., Perspectives in Criminal Law. Aurora, Ont.: Canada Law Book, 1985, 81.

Price, Ronald R., and Paula W. Mallea. “‘Not by Words Alone’: Criminal Appeals and the No Substantial Wrong or Miscarriage of Justice Rule”. In Vincent M. Del Buono, ed., Criminal Procedure in Canada. Toronto: Butterworths, 1982, 453.

APPEAL from a judgment of the Manitoba Court of Appeal (1999), 1999 4114 (MB CA), 138 Man. R. (2d) 23, 202 W.A.C. 23, [1999] 10 W.W.R. 207, 136 C.C.C. (3d) 391, [1999] M.J. No. 278 (QL), dismissing the accused’s appeal from his conviction for first degree murder. Appeal dismissed.

Martin D. Glazer, for the appellant.

Richard A. Saull, for the respondent.

The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Major, Binnie and Arbour JJ. was delivered by

Arbour J. --

I. Introduction

[1] My colleague Justice LeBel has reviewed the relevant facts in his reasons. I only find it necessary to expand slightly on the facts surrounding the central issue before us in this appeal.

[2] A few hours after the jury began its deliberations in this murder case, it requested transcripts of proceedings to review the evidence of certain witnesses. Neither counsel nor the trial judge realized at that time that the transcripts in question had not been edited to delete submissions that had been made in the absence of the jury. The jury was in possession of these unedited transcripts for approximately six and a half hours until defence counsel became aware of the content of the transcripts and informed the court of the problem.

[3] The jury was provided with a total of approximately 350 pages containing the evidence of four different witnesses. In an early portion of the transcripts, in the course of the direct examination of Dr. MacDonald, defence counsel indicated that he had certain objections to make and that it should be dealt with in the absence of the jury. The record then indicates that the jury was asked to retire. Immediately after that entry, the transcript reveals as follows:

THE COURT: Yes. Was that your concern?

MR. GLAZER: No. My concern -- I might as well deal with it now -- is that I hope my friend isn’t going to ask this witness to reveal hearsay that he relied on that has not been tendered as evidence in court because that would be inadmissible. For example, if certain photographs are not filed and the witness says he’s basing his opinion on photographs that haven’t been filed, that is inadmissible. If he says that he’s basing his opinion based on temperature he believes was taken, but that temperature was not filed as an exhibit or tendered as evidence in the trial, then, the jury has to be told to disregard that.

THE COURT: That ultimately -- I mean I don’t know what is coming from the Crown, but certainly the doctor is entitled to say what it was that he used to form his opinion and if the underpinnings are not subsequently proven to support his opinion, that that’s --

MR. GLAZER: I beg to disagree, My Lady. The law as I understand it is -- for example, My Lady had ruled that certain comments by the accused are inadmissible. If the witness during the course of his testimony refers to those comments as forming the basis of some of his opinion, it would be grounds for a mistrial. He can only refer to what is before the jury; he can’t refer to evidence that is not before the jury. [Emphasis added.]

[4] Immediately after the transcripts were retrieved from the jury, defence counsel moved for a mistrial. On that occasion, he did not object in particular to the portion of the transcript quoted above. Rather, he referred to information on the voir dire that made reference to a prior trial. Having heard the submissions, the trial judge ruled as follows:

Well, at this stage of the proceedings, what I propose to do, and I appreciate your comments and I share the concern that you have expressed, but at the same time, we’ve gone to this stage, and what I propose to do is to bring the jury in and to indicate and not to red flag whose transcript and not to indicate what areas but simply to say that there were some matters in the transcripts that were not properly before them and ought not to form part of their consideration and to caution them on that and to indicate, again, that only evidence that was properly before them is to be considered; and, in addition, to indicate that we will keep all of the transcripts here until we’re in a position to provide them with clean copies of exactly what was before them.

[5] After the jury returned a verdict of guilty the trial judge asked the jury to retire so she could talk to counsel alone. After the jury left, the judge indicated that before formally recording the verdict, she wanted to raise the matter of the transcripts that were sent inadvertently to the jury during their deliberations. She said that she was still entertaining the possibility of declaring a mistrial at this stage and would like to hear the submissions of counsel on that issue. In the course of these submissions, defence counsel referred to the passage quoted above as an indication that the jury could only have assumed that his client had made a confession “or something of that nature”. Having heard the submissions, the trial judge concluded that she was not certain that she had jurisdiction to declare a mistrial after a verdict had been rendered by the jury. Then, she indicated “with some reluctance” that she would bring the jury back. At the request of the defence, the jury was polled and confirmed the verdict.

[6] The issue before us is to characterize properly this ground of appeal, within the meaning of s. 686 of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c