Purpose of the curative proviso is to avoid a retrial that would be superfluous and unnecessary but sets high the Crown’s burden

R. v. Sarrazin, 2011 SCC 54 was released about 15 minutes ago. It is a strong decision supporting a limited reading of the curative provision for harmless errors in criminal matters. A summary follows:

N was shot in the forearm and the abdomen and suffered life-threatening injuries, particularly to his liver.  N was released from the hospital and was expected to make a full recovery.  Five days later, he died as a result of a blood clot.  In the autopsy, trace amounts of cocaine were detected in his blood, indicating cocaine consumption within 30 to 45 minutes of death. Expert testimony indicated that N might have died from complications arising from the ingested cocaine.  At trial, the defence argued that a reasonable doubt had been raised as to whether the victim's death was or was not related to the shooting — even if the evidence showed the accused intended to kill the victim, there was a reasonable doubt on the medical evidence that they in fact caused the victim's death.  The accused argued that the correct verdict in law to give such a finding (if it were made by the jury) would be to acquit the accused of murder, but convict them of attempted murder.  The trial judge declined to put the option of attempted murder to the jury, and the accused were convicted of second degree murder.  The majority of the Court of Appeal ordered a new trial by concluding that the trial judge's failure to afford the jury an opportunity to consider returning a verdict on an included offence, where that verdict was reasonably available, constituted a reversible error.  The minority found that the trial judge's error was harmless in the circumstances of this case and would have applied the curative proviso on the basis that the jury was equipped with all the tools it needed to give the matter of causation careful consideration.

The Supreme Court held the need to prove causation is common to both murder and manslaughter.  The Crown must establish beyond a reasonable doubt that the shooting significantly contributed to the victim's death.  If the evidence of the Crown pathologist left the members of the jury with a doubt on that account, then at most the accused could be convicted of an attempt to murder.  If that view were taken by the jury (and of course we do not know what its members thought), the appropriate verdict (attempted murder) was not one of the options left open to them to consider.  The accused had a right to the verdict of a properly instructed jury, and appellate courts must exercise prudence so as not to trespass on that fundamental right. 

The dissenting judge in the Court of Appeal urged adoption of a more "holistic" approach to s. 686(1)(b)(iii) by lightening of the Crown's burden from a requirement to demonstrate an "overwhelming" case against the accused to the lesser standard of a "very strong" case, and to allow appellate courts to tolerate errors of law that while not "insignificant" are nevertheless "highly unlikely to have affected the result". 

However, there is a significant difference between a legal error that can be confidently dismissed as "harmless", and an assessment that while the error is prejudicial, it is not (in the after-the-fact view of the appellate court), so prejudicial as to have affected the outcome.  Such delicate assessments are foreign to the purpose of the curative proviso which is to avoid a retrial that would be superfluous and unnecessary but to set high the Crown's burden of establishing those prerequisites.  The same can be said for the other branch of the curative proviso. As a result, the burden of the Crown to demonstrate an "overwhelming" case or a "harmless" error of law should not be relaxed.

The trial judge's error in failing to put to the jury the option of a lawful verdict that matched the theory of the defence and that was open to the jury on the evidence cannot be dismissed as "harmless" because it is impossible to be certain that if this had been done, and notwithstanding the correct instruction on murder, the verdict might not have been different.  This is not a case where the triviality of the error itself or the lack of prejudice by a more serious error can justify the application of the curative proviso.  A failure to instruct on a viable alternative verdict falls into neither category.  Accordingly, in the circumstances of the present case, it is not open to the appellate court to apply the curative proviso to remedy the trial judge's error in his instruction to the jury.