One of the interesting things about R v Tayo Tompouba, 2024 SCC 16 is the discussion of the criteria for a successful appeal against conviction in Canada. Another is the difference in judicial opinion over whether this case involved an error of law or a miscarriage of justice. Either way, the consequences differ. A third interesting thing is the way Canadian trials accommodate the various languages, particularly French and English.
The powers of a Canadian appellate court hearing an appeal against conviction are set out in s 686 of the Criminal Code, quoted at [53] of the majority judgment. Of note is the separation of wrong decisions on a question of law from miscarriage of justice on any ground: s 686(1)(a)(ii) and (iii).
If an appeal is advanced on the ground that there had been an error of law, and if the appellate court finds that there had been such an error, then the appellant will succeed unless the respondent can persuade the court on the balance of probabilities that the error was not substantial or that no miscarriage of justice had occurred: s 686(1)(b)(iii).
If, on the other hand, an appeal is advanced on the ground that there had been a miscarriage of justice, the appellant has the burden of convincing the appeal court that there was such a miscarriage and also that it was a miscarriage that prejudiced the appellant: s 686(b)(iv). This sort of prejudice would be the error that had an adverse effect on the outcome of the proceedings.
It is interesting (for the very few people who take an interest in such things) to compare this arrangement with the way conviction appeals are analysed in other jurisdictions. For example, here [1] our governing provision is s 232 of the Criminal Procedure Act 2011. Relevantly, we put errors of law implicitly under the rubric of miscarriages of justice, defined in s 232(4). And errors are not miscarriages of justice unless they have a consequence specified in s 232(4)(a) or (b). It is, as a matter of interpretation of the legislation, for the appellant to satisfy the court that any such consequence occurred.
So in Canada the appellant in this appeal was in a slightly better position if the error he complained of was an error of law. Here the judges differed, with Karakatsanis and Martin JJ jointly dissenting by regarding the appeal as being about a miscarriage of justice and not about an error of law.
The error, however it would be classified, was a failure at an early stage of the proceedings to draw Mr Tayo Tompouba’s attention to his right to choose which language, English or French, to have his trial conducted in. This, the third of the interesting things I mentioned at the outset, is remarkable for the extent to which Canadian trial law accommodates the two official languages [36], [38]-[42].
In New Zealand, by contrast, while Te Reo Māori is recognised in law as an official language by the Māori Language Act 2016, which is also named Te Ture mō Te Reo Māori 2016, in legal proceedings it only gives the right to speak Māori: s 7. English language does not have legal status but it is the language spoken by most people in New Zealand and may be described as the de facto official language.
Getting down to the nitty gritty, as we say in English, how did the difference in whether the error in this appeal was an error of law arise? The majority, in a judgment delivered by Wagner CJ, held that because there was a statutory duty to give an accused person information about the right to choose a language, the error was one of law [84]. It was a failure to apply a legal rule.
The minority took the view that the case law limited errors of law to errors by the trial judge, not errors that occurred, as here, at an earlier stage of the proceedings [134]. Errors of law undermine the correctness of the court’s judgment. This meant that in the minority’s opinion the error was a miscarriage of justice rather than an error of law, and so the appellant had to show that it had some effect on the exercise of his right to choose a language and he needed to produce evidence, such as an affidavit, that he was unaware of the right [135]-[136].
This suggests an interesting [2] subject for discussion: would it be preferable in legislation to avoid distinguishing errors of law from miscarriages of justice, and to require an appellant to always have the burden of satisfying the appellate court that the irregularity resulted in an adverse outcome at trial?
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[1] By “here” I mean in New Zealand, not in the country where I happen to be writing this.
[2] I insist that it is interesting.
