It does not happen much on appeal, but it does happen — and there are trial court judges who are more prone than others to raise an issue that the parties have not. So, when should it happen?

Thanks to judge Wayne Gorman, we know a little more about the Canadian approach to the issue.

In R. v. Mian, 2014 SCC 54, September 12, 2014, the accused’s acquittal was overturned by the Alberta Court of Appeal.  One of the reasons for doing so involved an issue that the parties had not raised, but was raised by the Court of Appeal. On appeal to the Supreme Court of Canada, the Court considered when an appeal court should raise an issue not raised by the parties and concluded that the Court of Appeal had erred in doing so in this case.

In reaching this conclusion, the Supreme Court set out “guidelines” for an appellate court to apply when determining whether to raise an issue on its own motion. Though these  guidelines are designed for appeals, they may also prove useful to trial judges who are attempting to determine if they should raise an issue at trial that the parties have not pursued. The guidelines are as follows (at paragraphs 57 to 59):

First, notification of the new issue may occur before the oral hearing, or the issue may be raised during the oral hearing. If the issue is raised during the oral hearing, it may be necessary to grant an adjournment to ensure a full and fair hearing (E.M.W., at para. 4). If the issue is raised prior to the oral hearing, the parties may request an adjournment of the hearing and an extension of the filing deadlines for further written argument.  At all times, the court should raise the issue as soon as is practically possible after the issue crystallizes so as to avoid any undue delay in the proceedings.

Second, I agree with the submission of the Crown that the notification should not contain too much detail, or indicate that the court of appeal has already formed an opinion; however, it must contain enough information to allow the parties to respond to the new issue. Ultimately, the adequate content of notice will have to be determined on a case-by-case basis. It will be dependent on a number of factors, including the complexity of the issue and the obviousness of the issue on the face of the record.

Finally, I agree with the submission of the Crown that the requirements for the response will depend on the particular issue raised by the court. Counsel may wish to simply address the issue orally, file further written argument, or both. As the Crown in this case says, this determination is properly in the hands of both the court and the parties. In my view, the underlying concern should be ensuring that the court receives full submissions on the new issue. If a party asks to file written submissions before or after the oral hearing, in my view, there should be a presumption in favour of granting the request. The overriding consideration is that natural justice and the rule of audi alteram partem will have to be preserved. Both sides will have to have their responses considered.