Curative proviso in context of serious error in judge alone trial

R. v. Ellis, 2012 NLCA 75 considers the curative provision of the Criminal Code and holds its application is exceptional:

[17]        The onerous test that is to be applied by this Court when considering the curative proviso in the wake of a serious error in a judge-alone proceeding is outlined in R. v. Pavlov, 2009 NLCA 44 (CanLII), 2009 NLCA 44, 287 Nfld. & P.E.I.R. 19 at para. 21:

… As Sopinka J. indicated in S.(P.L.), at para. 43, and the majority confirmed in Khan, at paras. 29-31, once an error as to law has influenced a verdict so as to remove it from the category of "harmless" error, the appropriate inquiry is whether "the evidence is so overwhelming that ­a trier of fact would inevitably convict". [Emphasis added in original.]  The question is whether any trial judge, not the particular judge who heard the case, would inevitably have had to come to the same conclusion as to guilt beyond a reasonable doubt, when the credibility of the accused is properly assessed.

                                               (Underlining in original; italics added.) 

[18]        In Pavlov, Barry J.A. emphasized that the curative proviso could not be applied to serious errors to avoid an order for a new trial unless the evidence adduced was so overwhelming that a conviction was inevitable.   He cited the following reasons of Justice Deschamps for the majority in R. v. Trochym,2008 SCC 7 (CanLII), 2008 SCC 7, [2007] 1 S.C.R. 239 at para. 82, which identified the standard to be met by the Crown before the curative proviso can be invoked:

The instant case is one that falls squarely within the second category of serious errors that would justify a new trial unless the properly adduced evidence is so overwhelming that a conviction is inevitable, or would invariably result.  This standard should not be equated with the ordinary standard in a criminal trial with proof beyond a reasonable doubt.  The application of the proviso to serious errors reflects a higher standard appropriate to appellate review.  The standard applied by appellate court, namely that the evidence against an accused is so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirement that the Crown prove its case "beyond a reasonable doubt" at trial.  This higher standard reflects the fact that it is difficult for an appellate court, in particular when considering a jury trial, since no detailed findings of fact will have been made, to consider retroactively the effect that, for example, excluding certain evidence could reasonably have had on the outcome.

                                                                             (Emphasis added.)

[19]        Barry J.A. also addressed the particular concerns relating to cases on appeal turning on credibility.  He wrote at paragraph 17 of Pavlov:

Where credibility is critical for the issue of reasonable doubt, the statement of Abella J. for the majority in R. v. C.L.Y., 2008 SCC 2 (CanLII), [2008] 1 S.C.R. 5, at paras. 6 and 8, warrants emphasis:

[6] … This Court has consistently warned that verdicts of guilt should not be based on 'whether [triers of fact] believe the defence evidence or the Crown's evidence' … .  Rather, the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused … .  The following suggested steps in [R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758] are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt:

            First, if you believe the evidence of the accused, obviously you must acquit. 

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

                                                            …..

[8] … the verdict should not be based on a choice between the accused's and Crown's evidence, but on whether, based on the whole of the evidence, [triers of fact] are left with a reasonable doubt as to the accused's guilt… .

[20]        Given the higher standard required from the Crown in seeking the application of the curative proviso, the error of the trial judge in considering the contents of the Witness' police statement cannot be overcome by substituting certain portions of his testimony.  The Crown has simply not established, within the confines of the remaining evidence this Court can consider, that the evidence against the appellant is so overwhelming that his conviction is inevitable or would invariably result.