Appellate courts often raise issues and pose questions to parties before or during oral argument. While these interjections can rattle seasoned litigators and may pose strategic problems, the Supreme Court of Canada in R v. Mian, 2014 SCC 54 affirmed that an appellate court has jurisdiction to raise any issue that does not suggest bias.
But there is a limit to an appellate court’s discretion. If an issue raised by the court was neither raised by the parties nor grounded in any issue raised by the parties and provides a new basis for reviewing the decision under appeal, then it is a new issue.
So, there are ‘new issues’ and there are ‘not new issues’. Appellate courts are free to raise not new issues while new issues should rarely be raised. How can we distinguish a not new issue from a new issue?
The distinction between not new and new issues can be seen in the two issues raised by the Alberta Court of Appeal in R v Mian:
1) What is a question of law on an appeal from an acquittal?
2) What are the limits of cross-examination and consequences of exceeding the limits?
The Alberta Court of Appeal granted the appeal in Mian on the basis of the second issue, that the trial judge erred in relying on an impermissible cross-examination.
The Supreme Court of Canada ruled that the first question was not a new issue because as a question of jurisdiction it simply goes to the “backdrop of litigation” (paras 34 and 61). As such, the appeal court was free to raise the issue.
In contrast, the second question was a new issue because it provided a new basis to review the decision, it was not raised by the parties nor grounded in any of the issues raised by the parties.
As a new issue, the Alberta Court of Appeal should have only raised it if the court had good reason to believe that failure to raise the issue would risk an injustice. The Supreme Court of Canada found that an injustice was not at risk because the trial judge’s decision did not rely on the impugned cross-examination. And, even if the testimony was relied upon, it would not made a material difference. And finally, the cross-examination was not objected to at the time (paras 64 – 66). Since the issue would not have changed the result, the court should not have raised the issue in the first place.
Complicating matters of course is that the Alberta Court of Appeal must have thought it had a good reason to believe that there was a risk to injustice since they overturned the trial judge’s decision on that very basis.
The upshot is that if an appeal court raises an issue that is a bona fide new issue then the appeal court must have “good reason” to believe that failure to raise the issue would risk an injustice. Short of that, the court should not exercise its discretion. Lastly, whether or not the court in fact had “good reason” is itself reviewable.