New arguments on appeal

Generally speaking an appeal court will not consider arguments not made at trial. 

 

This means it is essential to raise objections and adduce a full record at trial.

 

Sometimes, where the justice of the case demands, an appeal court will consider an issue not raised at trial.  That said, such arguments will be considered only where a proper record allowing the appeal court to deal will the issue exists.  Where such record is not available the appeal court will not consider the issue.

 

Friday’s decision in R. v Roach, 2009 ONCA 156, dealing with the constitutionality of a mandatory minimum sentence, makes the point clearly:

 

[6]               Generally speaking, appeal courts will not entertain arguments not made at trial:  Kaiman v. Graham, [2009] O.J. No. 324 at paras. 18-19 (C.A.).  That general rule applies to constitutional arguments raised for the first time on appeal regardless of whether the arguments invoke the remedial powers of s. 24 of the Charter or the nullifying power in s. 52(1) of the Constitution Act, 1982: e.g. see R. v. L.G. (2007), 228 C.C.C. (3d) 194 at para. 43 (Ont. C.A.);  R. v. Seo (1986), 25 C.C.C. (3d) 385 at 394 (Ont. C.A. ).

[7]               An appellate court does, however, have the discretion to permit new arguments, including Charter arguments.  In exercising that discretion, the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed on appeal even though it was not raised at trial.  An appellate court will be most inclined to exercise its discretion in favour of hearing a new argument where that new argument can be fully addressed and determined based on the trial record:  e.g. see R. v. Sweeney (2000), 148 C.C.C. (3d) 247 at paras. 34-40 (Ont. C.A. ).  More rarely, an appellate court will hear a new argument based on an evidentiary record laid out for the first time in the court of appeal:  e.g. R. v. Seo, supra. 

[8]               In my view, the more numerous and contentious the evidentiary disputes generated by the material filed on appeal in respect of the issue raised for the first time on appeal, the less likely it is that the appellate court will exercise its discretion in favour of considering the merits of the new argument.  While appeal courts do resolve evidentiary disputes from time to time in the course of deciding appeals, appellate procedures are not designed for that purpose.  The appellate forum and its procedures are not adapted to the weighing of evidence and the finding of facts.  Appeal courts review decisions made at trial.  The appeal process is premised on the issues under appeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court.  If a new argument put forward on appeal can only be effectively and fairly resolved by conducting what amounts to the trial of an issue or several issues in the appellate court, the appellate court should, absent exceptional circumstances where the interests of justice require otherwise, decline to resolve the new issue raised on appeal.