R. v. Thomas, [1998] 3 SCR 535

R. v. Thomas, [1998] 3 S.C.R. 535

Alexander Francois Thomas                                                             Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. Thomas

File No.:  25943.

1998:  June 19; 1998: December 17.  

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the british columbia court of appeal

Criminal law -- Appeals -- Powers of court of appeal -- Accused convicted of second degree murder following jury trial -- Court of Appeal ordering new trial limited to issue of whether accused guilty of second degree murder or manslaughter --  Whether Court of Appeal had jurisdiction to make order for limited new trial -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(8) .

The accused was charged with second degree murder in relation to the shooting death of his common law partner.  The incident occurred in the presence of an eyewitness who testified that the accused had killed his partner.  The accused relied on the defence of intoxication in support of his position that he should be convicted of manslaughter.  In his closing address to the jury, defence counsel conceded that his client caused the death of his partner by means of an unlawful act.  The accused was convicted of second degree murder and, because of ineffective legal representation, filed a notice of appeal more than two years after his conviction. In the meantime, a number of trial exhibits were destroyed.  The Court of Appeal granted the motion to extend time to file the notice of appeal, allowed the appeal from conviction and ordered a new trial pursuant to s. 686(2)  of the Criminal Code .  The court held that the trial judge had not adequately answered questions from the jury on the issue of intent and intoxication. The court also issued an ancillary order under s. 686(8), confining the new trial to the issue of whether the accused was guilty of second degree murder or manslaughter.

Held (L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting):  The appeal should be allowed and a full new trial ordered.

Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.:  Section 686(8) does not confer unlimited discretion on a court of appeal to issue ancillary orders.  In addition to being constrained by what justice requires, a court of appeal should not issue an order that is at direct variance with the court’s underlying judgment.  Any order made under s. 686(8) must also be consistent with s. 686 when read in its entirety.  A court of appeal must thus assess whether it has jurisdiction to issue a particular ancillary order under s. 686(8) having regard to the basis on which the appeal is disposed of and its various powers under s. 686 generally.

The Court of Appeal had no jurisdiction to issue an order limiting the accused’s new trial to the issue of whether he is guilty of second degree murder or manslaughter.   Orders limiting the scope of a new trial after granting an appeal from a jury verdict do not accord with the principles underlying the powers granted to courts of appeal under s. 686.  While s. 686(4) applies only to appeals from acquittal, and this case deals with an appeal from a conviction, that subsection offers guidance as to the extent of an appeal court’s jurisdiction under s. 686(8) to order a limited new trial in a jury case.  Under s. 686(4)(b)(i), a court of appeal could not issue the kind of order that was issued in this case.  To do so would be tantamount to entering a partial conviction against the accused, which s. 686(4)(b)(ii) specifically prevents the appeal court from doing.  Therefore, the words “new trial” in s. 686(4)(b)(i) mean a full new trial and the same  words in s. 686(2)(b) should be given a like meaning, at least where there has been a jury trial.

Further, there is  no power under s. 686(2)(b) allowing an appellate court to substitute a finding of guilt for any other offence.  The Court of Appeal’s order in this case amounts to a finding of guilt for, at the least, manslaughter, constituting a substituted verdict for the jury’s conviction of second degree murder.  Section 686(8) does not extend so far as to provide authority for such an order in the circumstances of a jury trial.  As a matter of principle, appeal courts should not restrict the plenitude of the jury’s jurisdiction on a new trial by confining the scope of the issues normally within its province.  In ordering a limited new trial, the Court of Appeal attempted to circumscribe the duties of the jury to deciding between manslaughter and second degree murder.  The jury is precluded from entering a verdict of not guilty.

This case also illustrates that there may be dangers in restricting the ambit of new trials before a jury. Here, the questions posed by the jury to the trial judge indicate that the jury struggled with the issue of mens rea.  Given the fundamental nature of those questions, were it not for the fact the accused’s counsel conceded to the jury that his client had killed his partner and asked for a finding of guilty of manslaughter, it is unlikely that the Court of Appeal would have had any confidence in the accused’s liability even for manslaughter.  A limited new trial in this case  would bind the accused to concessions made at the first trial which could limit his right to full answer and defence at the second trial and impinge on his presumption of innocence as protected by ss. 7  and 11( d )  of the Canadian Charter of Rights and Freedoms .  Furthermore, since the accused’s trial, there have been important developments in the law regarding the relationship between mens rea, intent and intoxication, including the enactment of s. 33.1  of the Criminal Code  with respect to the defence of self-induced intoxication. It would be inappropriate in these circumstances to constrain the issues to be placed before the second jury.

Per L’Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting):  When a court of appeal orders a new trial pursuant to s. 686(2)  of the Criminal Code, s. 686(8) allows the court to make “any order, in addition, that justice requires”.  In this context, the remedial purpose of s. 686(8) is to ensure that the interests of justice are protected where ordering a new trial alone would not ensure that justice is done.  This remedial purpose should be broadly construed in order to enhance the ability of appellate courts to respond in a measured way to the nature and extent of the error made at trial.  A court of appeal’s jurisdiction under s. 686(8) to make all kinds of orders, including any ancillary order restricting the issues of a new trial, is limited only by what “justice requires”. What “justice requires” in a particular situation will vary and should be determined by the court of appeal on a case-by-case basis. The determination of what “justice requires” is informed by the remedial purpose of s. 686(8) and involves a consideration of both the individual interest of the accused in a fair trial and the collective interest in the proper administration of justice.  In addition, the language of s. 686(8) is inconsistent with a determination that certain classes of orders are outside its scope. While the discretion granted under s. 686(8) to appellate courts is not unlimited, the proper approach for this Court is to review the exercise of that judicial discretion on a case-by-case basis and not to conclusively place entire classes of orders outside the jurisdiction of a court of appeal.  Section 686(4), which is not at issue in this case, cannot be used to limit the jurisdiction granted to appellate courts by s. 686(8).

An order under s. 686(8) restricting a new trial to limited verdicts is an exceptional remedy that will be required by justice in “special circumstances”.  Such an order may exceptionally be available where it is beyond reasonable doubt that the accused committed the guilty act and the only outstanding issue relates to the legal quality of that act.  In this case,  identity was not an issue at trial.  Defence counsel admitted to the jury that the accused had caused the death of his partner by means of an unlawful act and that he was accordingly guilty of at least manslaughter.  There was also overwhelming evidence tendered at trial against the accused. This led the Court of Appeal to conclude that there was no doubt that the accused killed his partner. In these special circumstances, the Court of Appeal’s order restricting the new trial to limited verdicts of manslaughter or second degree murder was appropriate and in accordance with the requirements of justice.

The order is not inconsistent with the presumption of innocence guaranteed by s. 11( d )  of the Charter .   Here, the Crown has already discharged its burden with respect to the other elements of the crime and the jury has found beyond a reasonable doubt that the accused killed his partner.  The trial judge’s error relates to his instructions on the issue of intent.  Accordingly, the Court of Appeal only revived the elements relevant to the issue of intent.  On those elements, the accused is entitled to a full presumption of innocence and the Crown must prove the intent required for second degree murder beyond a reasonable doubt. The same reasoning refutes the suggestion that a new trial on restricted issues violates the right to a jury trial guaranteed by s. 11( f )  of the Charter .  Furthermore, the accused will suffer no prejudice arising from the order.  The restricting order corrects the error made at trial, returns the accused to the same position he was in at the conclusion of the trial, and permits him to fully litigate the only live issue -- his level of intent -- that remains undecided by a properly and fully instructed jury.  Lastly, the changes in the law regarding intent and intoxication since the accused’s trial are not relevant to this case because there is no suggestion that the accused was in a state resembling that of extreme intoxication akin to automatism.

The Court of Appeal did not err in hearing the motion to extend time at the same time as the appeal and in relying on the Crown’s affidavits.

Cases Cited

By Lamer C.J.

Distinguished: R. v. Pearson, [1998] 3 S.C.R. 620; referred to: R. v. Warsing, [1998] 3 S.C.R. 579; R. v. Wade (1994), 89 C.C.C. (3d) 39, rev’d on other grounds [1995] 2 S.C.R. 737; Elliott v. The Queen, [1978] 2 S.C.R. 393; R. v. Provo, [1989] 2 S.C.R. 3; Kienapple v. The Queen, [1975] 1 S.C.R. 729; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Meltzer, [1989] 1 S.C.R. 1764; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Stanley (1977), 36 C.C.C. (2d) 216; R. v. Cook (1979), 47 C.C.C. (2d) 186; R. v. B. (A.J.) (1994), 90 C.C.C. (3d) 210; R. v. Geauvreau, [1982] 1 S.C.R. 485; Reference re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135; R. v. Daviault, [1994] 3 S.C.R. 63.

By L’Heureux-Dubé J. (dissenting)

 R. v. Pearson, [1998] 3 S.C.R. 620; R. v. Warsing, [1998] 3 S.C.R. 579;  Reference re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135; R. v. Wade (1994), 89 C.C.C. (3d) 39, rev’d on other grounds [1995] 2 S.C.R. 737; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. Hinchey, [1996] 3 S.C.R. 1128; R. v. Bernardo (1997), 121 C.C.C. (3d) 123; R. v. Hinse, [1995] 4 S.C.R. 597; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Chek TV Ltd. (1986), 27 C.C.C. (3d) 380; R. v. O’Connor, [1995] 4 S.C.R. 411; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624; Elliott v. The Queen, [1978] 2 S.C.R. 393; R. v. Provo, [1989] 2 S.C.R. 3; R. v. Stanley (1977), 36 C.C.C. (2d) 216; R. v. Cook (1979), 47 C.C.C. (2d) 186; R. v. Ruptash (1982), 68 C.C.C. (2d) 182; R. v. Popoff (1960), 129 C.C.C. 250; R. v. Geauvreau, [1982] 1 S.C.R. 485; R. v. Maxwell (1990), 61 C.C.C. (3d) 289; R. v. Barnes (1990), 54 C.C.C. (3d) 368, aff’d [1991] 1 S.C.R. 449; R. v. Laverty (1990), 80 C.R. (3d) 231; R. v. Farinacci (1993), 86 C.C.C. (3d) 32; R. v. Noble, [1997] 1 S.C.R. 874; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Buxbaum (1989), 70 C.R. (3d) 20; R. v. Daviault, [1994] 3 S.C.R. 63.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 7 , 11( d ) , (f).

Criminal Code , R.S.C., 1985, c. C-46 , ss. 33.1  [ad. 1995, c. 32, s. 1], Part XXI, 674, 686(1) [am. c. 27 (1st Supp.), s. 145; 1991, c. 43, s. 9 (Sch., item 8)], (2), (3) [am. c. 27 (1st Supp.), s. 145], (4) [idem], (6) [rep. & sub. 1991, c. 43, s. 9 (Sch., item 8)], (7) [idem], (8).

Authors Cited

Côté, Pierre-André.  The Interpretation of Legislation in Canada, 2nd ed.  Cowansville, Qué.:  Yvon Blais, 1991.

Salhany, Roger E.  Canadian Criminal Procedure, 6th ed.  Aurora, Ont.:  Canada Law Book, 1994 (loose-leaf updated May 1998, release No. 8).

Sopinka, John, and Mark A. Gelowitz.  The Conduct of an Appeal.  Toronto:  Butterworths, 1993.

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 85 B.C.A.C. 303, 138 W.A.C. 303, [1997] B.C.J. No. 341 (QL), allowing the accused’s appeal from his conviction for second degree murder and ordering a new trial confined to the issue of whether the verdict should be one of second degree murder or of manslaughter.  Appeal allowed and full new trial ordered, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.

Sheldon Goldberg, for the appellant.

Gregory J. Fitch, for the respondent.

The judgment of Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by

//The Chief Justice//

1                                   The Chief Justice -- This appeal, along with the two others being released with it, R. v. Warsing, [1998] 3 S.C.R. 579, and R. v. Pearson, [1998] 3 S.C.R. 620,  deal with the powers of courts of appeal under s. 686  of the Criminal Code , R.S.C., 1985, c. C-46 . The particular issue that arises in this case is whether on an appeal from a conviction, s. 686(8)  of the Criminal Code , which provides that a court of appeal may make “any [additional] order . . . that justice requires”, authorizes it to order a new trial limited to the issue of whether the accused is guilty of second degree murder or manslaughter. This question was raised in another case which recently came before this Court but that case was ultimately decided on other grounds:  R. v. Wade, [1995] 2 S.C.R. 737.  I wish to state at the outset that my decision in this case focuses on an appellate court’s powers with respect to appeals from jury verdicts.  I leave for another day the question of whether the same principles would apply to appeals from decisions by a judge alone and whether, in that case, s. 686(8) might allow a court of appeal to limit the defences available to an accused on a second trial.   In addition, for the reasons given by Justice Major and myself in Pearson, the issue of entrapment presents such a special set of circumstances for appeal courts that it justifies a different approach to s. 686(8)  of the Criminal Code  than that which I take in this case.                                

I.  Factual Background

2                                   The appellant, Mr. Thomas, was charged with second degree murder in relation to the shooting death of his common law partner, Ms. Alexander.  The incident occurred in the presence of a certain Ray Davis who testified that the accused killed Alexander.  The only serious issue that arose at trial was whether Mr. Thomas intended to cause the victim’s death, thereby committing murder.  The appellant relied on the defence of intoxication in support of his position that he should be convicted of the lesser included offence of manslaughter.  In his closing address to the jury, counsel for the appellant conceded that his client caused the death of Ms. Alexander by means of an unlawful act.  The accused was convicted of second degree murder on March 19, 1993. 

3                                   A notice of appeal against conviction was filed on Thomas’ behalf on May 29, 1995, almost two years out of time.  This delay in filing an appeal was apparently attributable to the questionable conduct of the lawyer retained by British Columbia Legal Services to advise the accused at that point in time.  These regrettable circumstances resulted in a breakdown in communication between the accused, his lawyer and the Legal Services Society of British Columbia.  In the meantime, in September 1993, the Crown gave permission for most trial exhibits to be destroyed.  Taken as a whole, these exhibits confirmed the oral testimony of Davis, the only eyewitness to the shooting, and assisted the Crown in establishing that Thomas killed Alexander. 

4                                   Given the fact that the accused had fallen prey to ineffective, if not negligent, legal representation, the Court of Appeal agreed to hear the appellant’s motion to extend time for bringing an appeal against his conviction.  In fact, the Court of Appeal heard the motion to extend time and the appeal against conviction at the same time, on January 6, 1997.  The next day, in oral reasons for judgment, the Court of Appeal granted the motion to extend time, allowed the appeal from conviction and ordered a new trial pursuant to s. 686(2)  of the Criminal Code : (1997), 85 B.C.A.C. 303.  Lambert J.A. held that a new trial was required in light of the failure of the trial judge to answer clearly the questions of the jury with respect to intent and intoxication.  However, the Court of Appeal went on to issue an ancillary order under s. 686(8), confining the new trial to the issue of whether the accused was guilty of second degree murder or manslaughter.  It is the limited character of this new trial order that Mr. Thomas challenges in this appeal.

II.  The Judgment of the British Columbia Court of Appeal

5                                   The Court of Appeal decided to hear the motion for extension of time and the appeal on the merits in a single hearing in order to save the court’s time.  The Court of Appeal also proceeded in this manner because the Crown had initially argued that an extension of time should only be granted if the appeal were limited to the issue of whether the accused was guilty of second degree murder or manslaughter. 

6                                   The Court of Appeal allowed the appellant’s motion.  It held that the failure of the trial judge to answer properly questions from the jury on the relationship between intent and intoxication left the jury confused about the state of the law.  In these circumstances, it was unsafe to uphold a conviction resting on the jury’s verdict, and a new trial had to be ordered.  However, on the basis of the evidence tendered at trial, there was no doubt that the appellant had killed Ms. Alexander.  Identity was not in issue at the trial.  Furthermore, some relevant exhibits had been destroyed before the appellant filed his notice of appeal two years late.  For these reasons, the Court of Appeal concluded that the new trial should be confined to the issue of whether the verdict should have been one of second degree murder or manslaughter.  Lambert J.A. held that the court had jurisdiction to make such an order by virtue of s. 686(8)  of the Criminal Code , as interpreted by the Ontario Court of Appeal in R. v. Wade (1994), 89 C.C.C. (3d) 39.  The court also extended the time for the accused to bring an appeal on sentence.

III.   Issues on Appeal

7                                   In this Court, Mr. Thomas relied on a number of grounds for appeal.  In his submission, not only did the Court of Appeal lack jurisdiction to order a limited new trial, it should not have heard the appeal on the merits at the same time as the motion for extension of time.  Furthermore, he argued that the court should not have considered the affidavit evidence tendered by the Crown to prove the destruction of exhibits.  It is suggested that taking this affidavit into account on the appeal on the merits supplanted the production of viva voce evidence.  The appellant also contended that the Court of Appeal erroneously relied on the destruction of evidence to limit the issues to be addressed on the new trial.  In his submission, the rights of an accused should in no way be prejudiced by what he characterizes as the “negligence of [his] former Counsel”.  Finally, the appellant argued that the “New Trial by Jury cannot be bound to a restricted decision according to the Criminal Code  and Charter of Rights ” (appellant’s factum at para. 4).  In particular, Mr. Thomas submitted that the ancillary order deprived him of his right to be tried by a jury.

8                                   In my opinion, the central issue raised by this appeal relates to the authority of the Court of Appeal to place limits on its order for a new trial and thereby confine the issue before the jury to the question of whether the accused is guilty of second degree murder or manslaughter.  Given my conclusion on this question, it is not necessary to consider the appellant’s other arguments.  In any event, it seems to me that Mr. Thomas misinterprets the reasons of the Court of Appeal.  On my reading of Lambert J.A.’s judgment, the Court of Appeal would have ordered a limited new trial independent of the destruction of evidence, for the sole reason that identity was not at issue.  Be that as it may, with respect,  it is my opinion that the Court of Appeal lacked authority to restrict the scope of the accused’s new trial in the manner it did.

IV.  The Legislation

9                                   The relevant portions of s. 686  of the Criminal Code  state:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a),

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; or

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears to the court to be required by the verdict and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or

(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

                                                                   . . .

(4) Where an appeal is from an acquittal, the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

                                                                   . . .

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

V.   The Court of Appeal’s Jurisdiction Under Section 686(8)

10                               The case at bar raises the important question of the scope of the powers bestowed upon a court of appeal under s. 686(8)  of the Criminal Code .  It provides that a court of appeal issuing an order under s. 686(2), (4), (6) or (7) “may make any order, in addition, that justice requires”.  Before us, the Crown argued that this subsection calls for as generous an interpretation as possible.  In its view, the unambiguous language of subs. (8) should be given its plain, unfettered meaning:  a court allowing or dismissing an appeal may make any additional order that justice requires.  Indeed, it is a well-settled principle of statutory interpretation that “if the text is clear, look no further”: P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 241.  In the Crown’s submission, the general wording of s. 686(8), in contrast to the detailed language of other parts of s. 686, confirms that subs. (8) must be read generously.  In light of the “broad range of remedies” provided by s. 686, the Crown argued that the remedial powers of a court sitting on appeal should allow it to tailor remedies proportionate to the harm found or said to have been occasioned as a result of errors committed in the trial court (Crown’s factum at paras. 40-41).  Finally, the Crown invoked the generous interpretation given by courts to phrases like the “interest of justice” to argue that the British Columbia Court of Appeal had jurisdiction to issue the order in appeal.  It also emphasized that an examination of the requirements of justice must consider factors relevant both to the accused and the overall administration of justice.

11                               The Crown cited case law which does suggest that s. 686(8) should be interpreted purposively.  In Elliott v. The Queen, [1978] 2 S.C.R. 393, this Court confirmed the power of a court of appeal to amend an indictment on a count of possession of a restricted drug for the purpose of trafficking.  The original indictment charged the accused with trafficking in the specific drug methylenedioxyamphetamine (“MDA”).  The evidence disclosed that the accused trafficked in a salt of MDA.  The Court of Appeal held that the provisions of the Food and Drugs Act which listed among the restricted drugs MDA “or any salt thereof” were insufficient to import a salt of MDA into a charge that specified only MDA.  The Court of Appeal allowed an amendment to the indictment to charge possession of a salt of MDA.   A new trial was ordered on that charge.  The issue before our Court was whether the Court of Appeal exceeded its powers in ordering the amendment of the original indictment to conform to the evidence.  For the majority of the Court, Ritchie J. stated at p. 431:

In my view when Parliament authorized the Court of Appeal, in the exercise of its power, to order a new trial, to “make any order, in addition, which justice requires” it must be taken as having authorized that Court under those circumstances to make any additional order which the ends of justice require whether the order for a new trial is dependent upon the additional order or not. [Emphasis in original.]

12                               A few years later, in R. v. Provo, [1989] 2 S.C.R. 3, Wilson J. held that a court of appeal could issue an order remitting a matter to trial for the purpose of entering a conviction on a sexual assault charge if the proceedings on this count had previously been stayed on the basis of the Kienapple principle (Kienapple v. The Queen, [1975] 1 S.C.R. 729).  In that case, the conviction on a count of incest arising from the same delict had been overturned on appeal.  In so doing, this Court stated at p. 19 that s. 686(8) grants “a broad ancillary jurisdiction” which should be interpreted “in a generous manner consistent with its broad remedial purposes”.   Wilson J. also held at p. 20 for a unanimous bench: 

There is, in my respectful view, no reasonable alternative to a broad reading of the Court of Appeal’s ancillary jurisdiction under s. 613(8) [now s. 686(8)], given its broad wording and remedial purpose.  The section gives the Court of Appeal a broad supplementary power to make any order that justice requires when it exercises its appellate powers under the enumerated subsections of s. 613.  [Emphasis added.]

13                               These two cases support the Crown’s position up to a certain point.   They make clear that s. 686(8) does not prevent the issuance of orders that serve the interests of the Crown in the administration of justice.  However, they also underscore a key feature of orders issued under s. 686(8), namely, that they are ancillary in nature.  

14                               In criminal matters, the jurisdiction of a court of appeal is purely statutory: s. 674  of the Criminal Code .  See also Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, at p. 69, and R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773.  As far as ordinary criminal appeals are concerned, the jurisdiction and powers of a court of appeal are defined exhaustively in Part XXI of the Criminal Code .  It is in light of this legislative scheme that the specific power awarded by s. 686(8) must be understood.  As Justice R. E. Salhany notes (in Canadian Criminal Procedure (6th ed. 1994 (loose-leaf)), at p. 9-5):  “[i]t is often forgotten that the right of an accused to appeal his conviction must be examined in light of the power of the court of appeal to deal with that conviction”.  Other commentators confirm this view (J. Sopinka and M. A. Gelowitz, The Conduct of an Appeal (1993), at p. 111):

The statutory nature of appeals in criminal matters reflects itself not only in the circumscription of appellate jurisdiction, but in the scope of powers available to an appellate court in an appeal properly brought before it.

Wilson J. adopted this approach in Provo, supra, at p. 20, when she noted that Parliament granted “broad supplementary power to make any order that justice requires” to a court of appeal “when it exercises its appellate powers under the enumerated subsections of s. 613” (now s. 686).  (Emphasis added.)

15                               This Court adopted a similar contextual interpretation of s. 686(8) in R. v. Hinse, [1995] 4 S.C.R. 597.  In that case, the Court was asked to reconsider an order refusing leave to appeal from an order of the Quebec Court of Appeal quashing a conviction and staying proceedings for abuse of process.  The Court confirmed that s. 686(8) granted authority to a court of appeal to stay criminal proceedings that violate the community’s sense of fairness.  The majority also commented in more general terms about the scope of the power granted by s. 686(8).  It held that a s. 686(8) order represents a “fundamentally distinct judicial order” from an order for a new trial, but that this former order is still “ancillary to the underlying judgment rendered by the court” (emphasis in original):

But the mere fact that a court of appeal may exercise its power under s. 686(8)  of the Criminal Code  independently of a prior order under s. 686(2)(b) does not, in my view, change the fundamentally ancillary and supplemental character of such an order. . . . The court’s power under s. 686(8), however, is not so inextricably wound up with the fate of the appeal.  Indeed, the court’s power under s. 686(8) is often exercised with regard to considerations that are well removed from the issue of the accused’s innocence or culpability.

(Hinse, supra, at paras. 24, 28 and 31.)

16                               Turning to the question of whether this Court has jurisdiction to hear appeals directed at s. 686(8) orders, I concluded for the majority that there were sound judicial policy reasons for allowing such orders to be appealed.  I also commented, at para. 33, on the range of remedies available under s. 686(8):

But a court of appeal’s residual order power under s. 686(8) is not subject to the same rigorous textual constraints as the court’s power under s. 686(2)(b).  Under its remedial power, a court of appeal may impose “any order” which, in its discretion, “justice requires”.  As such, there is a risk that a court of appeal may enter an order under s. 686(8) which is at direct variance with its underlying judgment.  A court of appeal may allow an accused’s appeal and enter an acquittal under s. 686(2)(a), but then, hypothetically, impose an order for costs against the accused for no apparent reason notwithstanding the language of s. 683(3).  Or a court of appeal could conceivably set aside an accused’s conviction, and then impose a stay of proceedings for reasons completely unrelated to any alleged abuse of process, thus transcending the limits upon a court of appeal’s discretion which this Court articulated in Power, supra, at p. 620.  In both such circumstances, the relevant discretionary order entered under s. 686(8) would be of questionable legality.  More importantly, the discretionary order [could] be fundamentally incongruous with the court's disposition of the appeal, arguably undermining the accused's success on the merits of her appeal. [Emphasis added.]

After referring to the order issued by the Ontario Court of Appeal in Wade, I added, at para. 34:

Assuming without deciding the problematic question of whether a court of appeal has the power under s. 686(8) to direct a new trial on certain limited issues, the policy risk presented by the unsupervised exercise of this power is readily apparent.  A court of appeal could effectively undermine an accused’s success on appeal by ordering a new trial only on certain limited issues which are completely unrelated to the accused’s underlying innocence or culpability.  The accused’s success in procuring a new trial under s. 686(2)(b) would be eviscerated by the court’s “additional order” under s. 686(8).  [Emphasis added.]

17                               The majority reasons in Hinse suggest that s. 686(8) does not confer unlimited discretion on a court of appeal.  In addition to being constrained by what justice requires, a court of appeal should not issue an order that is at direct variance with the court’s underlying judgment.      In my view, a court of appeal must assess whether it has jurisdiction to issue a particular ancillary order under s. 686(8) having regard to the basis on which the appeal is disposed of and its various powers under s. 686 generally. 

18                               Before turning to the order made by the Court of Appeal in this case, I note that the interpretation of s. 686(8) I propose generally accords with the many uses to which this provision has been put (see for example: R. v. Stanley (1977), 36 C.C.C. (2d) 216 (B.C.C.A.); R. v. Cook (1979), 47 C.C.C. (2d) 186 (Ont. C.A.); R. v. B. (A.J.) (1994), 90 C.C.C. (3d) 210 (Nfld. C.A.); R. v. Geauvreau, [1982] 1 S.C.R. 485; Kienapple, supra; and Reference re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135 (Ont. C.A.)).  However, given the narrow basis on which I would dispose of this case, I will say nothing about the propriety of those other uses of s. 686(8).  Its application in relation to entrapment is addressed in Pearson, supra.

19                               In this case, the Court of Appeal determined that the trial judge did not adequately answer questions from the jury on the issue of intent and intoxication.  While the court does not specifically enumerate the paragraph of s. 686(1) which is its basis for allowing the appeal, it can be inferred that the Court of Appeal found there was a miscarriage of justice in that the jury’s confusion was left unresolved.  In his reasons for judgment, Lambert J.A. specifically found that it was “unsafe” to uphold the conviction (p. 306).  In my view therefore, the basic or core judgment on appeal was that the jury’s verdict was flawed and could not be affirmed.  In such circumstances, the result must be a new trial (s. 686(2)).  The question is whether the Court of Appeal had jurisdiction to make an order for a restricted new trial.  I would say at the outset that I do not dispute the Crown’s position that s. 686(8) provides courts of appeal with the power to make a considerable range of ancillary orders.  (See, e.g., Pearson, supra.)  Nor would I disagree with its suggestion that courts of appeal must have considerable discretion in fashioning appropriate ancillary orders.  It is my view, however, that there are limits on that power and discretion and, in this case, those limits were exceeded.

VI.   The Operation of Section 686 with Respect to Jury Trials

20                               In addition to the above-noted limitations on a court of appeal’s powers under s. 686(8), I am of the view that any order made under it must be consistent with s. 686 when read in its entirety.  That section provides the jurisdiction of courts of appeal when disposing of appeals from conviction or acquittal, including the power to order a new trial.  In making such an order the court must obviously operate within the rules of its jurisdiction and respect the principles underlying them. 

21                               A very important limitation on the power of a court of appeal is contained in s. 686(4).  In particular,  the powers accorded to a court of appeal when allowing an appeal from a jury verdict of acquittal are circumscribed by the language of subparas. (i) and (ii) of s. 686(4)(b) which state:

(4)  Where an appeal is from an acquittal, the court of appeal may

                                                                   . . .

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law. [Emphasis added.]

The essence of this provision is that where an acquittal is pronounced by a jury, a court of appeal is powerless to substitute any finding of guilt, even for a lesser offence.  Should the court wish to set aside the verdict, its only option is to order a new trial pursuant to s. 686(4)(b)(i). 

22                               While this provision applies only to appeals from acquittal and we are dealing here with an appeal from a conviction, I believe it offers guidance as to the extent of an appeal court’s jurisdiction under s. 686(8) to order a limited new trial in a jury case.  It is clear to me that in ordering a new trial under s. 686(4)(b)(i) a court of appeal could not issue the kind of order that was issued in this case under the purported authority of s. 686(8).  To do so would be tantamount to entering a partial conviction against the accused which s. 686(4)(b)(ii) specifically prevents the appeal court from doing.  Accordingly, a “new trial” for purposes of s. 686(4)(b)(i) means a full new trial, not a limited one in the nature of that ordered by the Court of Appeal in this case.  It further follows that the words “new trial” in s. 686(2)(b) should be given a like meaning, at least in the circumstances where there has been a jury trial. 

23                               Section 686(2) provides that where an appeal court determines a conviction is unreasonable, or that there was an error of law or a miscarriage of justice, it may substitute an acquittal or order a new trial.    There is no power to substitute a finding of guilt for any other offence.  The court’s order in this case amounts to a finding of guilt for, at the least, manslaughter, constituting a substituted verdict for the first jury’s conviction of second degree murder.  Authority for such an order would have to be found in s. 686(8) and, for the reasons above, it is my view that that subsection does not extend so far as to provide it in the circumstances of a jury trial.

24                               The principle that is reflected in s. 686(4) is that great respect should be shown to juries -- both the original jury that heard the case and, more relevant for present purposes, the jury that will hear the new trial.  In my view, appeal courts should not lightly restrict the plenitude of the jury’s jurisdiction on a new trial by confining the scope of the issues normally within its province.  Here, in ordering a new trial, the Court of Appeal attempted to circumscribe the duties of the jury to deciding between manslaughter and second degree murder.  In effect, the Court of Appeal’s order amounts to a directed verdict for manslaughter, with instructions to the jury that it is free to go further should it choose.  The jury is precluded from entering a verdict of not guilty.  A limited new trial such as that proposed in this case might be an option, a matter I refrain from pronouncing upon in this case, if a court of appeal could send a matter back to the same jury.   In that event, the jury could be reinstructed and asked to deal with the specific issues of concern to the appellate court.  At the moment, however, the Criminal Code  does not provide for a matter to be referred back to the original trier of fact for a redetermination.

25                               While the foregoing is sufficient to deal with this appeal, there are other troubling aspects of the order granted by the court below that merit comment.  The situation in this case, to my mind, illustrates the dangers of restricting the ambit of a new trial before a jury.  Here, the jury posed two specific questions to the trial judge: “What is the definition of intent?” and “What role does impairment play in intent?”   Both of these questions clearly demonstrate that the jury struggled with the issue of mens rea.  The Court of Appeal found that the trial judge’s answers were limited and “unlikely to resolve the jury’s confusion” (p. 306).

26                               Given the fundamental nature of those questions, were it not for the fact that counsel for Mr. Thomas conceded to the jury that his client had killed Ms. Alexander and asked for a finding of guilty of manslaughter, it is unlikely that the Court of Appeal would have had any confidence in the accused’s liability even for manslaughter.  This reinforces my view that orders limiting the scope of a new trial after granting an appeal from a jury verdict do not accord with the principles underlying the powers granted to courts of appeal under s. 686.  I would add that in this case such a limitation would in effect bind the accused to concessions made at the first trial which could limit his right to full answer and defence at the second trial and impinge on his presumption of innocence as protected by ss. 7 and 11(d) respectively of the Canadian Charter of Rights and Freedoms . 

27                               There is a further argument which illustrates the dangers of ordering limited new trials.  In this case for example, Mr. Thomas’ first trial was held in the spring of 1993.  Just over a year later, this Court released its decision in R. v. Daviault, [1994] 3 S.C.R. 63.  Thereafter, Parliament enacted s. 33.1  of the Criminal Code , with respect to the defence of self‑induced intoxication.  Thus, there have been developments in the law regarding the relationship between mens rea, intent and intoxication, the very matters that concerned the Court of Appeal in this case.  In other situations, the changes in the law between the first and second trials might be even more dramatic.  To constrain the issues to be placed before a second jury in such circumstances would be inappropriate. 

28                               In light of the foregoing, I conclude that the Court of Appeal had no authority to issue an order limiting the appellant’s new trial to the issue of whether he is guilty of second degree murder or manslaughter.  I specifically leave aside the questions of whether such an order would be permissible in the context of a trial by judge alone and whether s. 686(8) would in that case permit  an appellate court to limit the defences available to an accused on a second trial, since I can think of other considerations that could well apply. Further, as mentioned, the special situation that arises in entrapment cases justifies a different approach: see Pearson, supra. Accordingly, I would allow the appeal and order a full new trial for Mr. Thomas.

The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

//L’Heureux-Dubé J.//

29                      L’Heureux-Dubé J. (dissenting)  -- I have had the advantage of the reasons of the Chief Justice in this appeal and, with respect, I cannot agree with them nor with his disposition of this case. This case, along with R. v. Warsing, [1998] 3 S.C.R. 579, and R. v. Pearson, [1998] 3 S.C.R. 620, released with this judgment, provides this Court with an opportunity to examine the scope of the broad powers conferred to appellate courts under s. 686(8)  of the Criminal Code , R.S.C., 1985, c. C-46 , and I take the position that they were not exceeded in this case.

30                      The essential facts can be quickly summarized.  The appellant was convicted by a jury of the second degree murder of his common law partner, Emily Alexander.  At trial, the appellant through his counsel admitted that he had shot Ms. Alexander, but relied on a defence of intoxication in order to support a verdict of manslaughter.  The appellant filed his notice of appeal more than two years after his conviction and, in the interim, a number of trial exhibits were destroyed.  On appeal, the British Columbia Court of Appeal granted an extension of time to file the notice of appeal, allowed the appeal on the basis that the trial judge had erred in answering questions from the jury with respect to intent and intoxication and ordered a new trial.  However, the Court of Appeal, relying on s. 686(8)  of the Criminal Code , limited the new trial to the issue of whether or not the appellant should be found guilty of second degree murder or manslaughter.

I.   Issues

31                      The main issue raised by this appeal concerns the power of a court of appeal under s. 686(8)  of the Criminal Code  to make an order restricting the scope of a new trial to the question of whether the accused is guilty of manslaughter or second degree murder.  An additional issue arises from the decision of the Court of Appeal to hear together the application for extension of time and the appeal itself.

II.   Scope of Section 686(8)

32                      In order to determine the scope of the powers bestowed by s. 686(8), it is necessary to interpret the expression “any order, in addition, that justice requires” as it appears under that section.  It is well established that the interpretation of a statute must give effect to Parliament’s intent and must be guided by considering the language of the section itself, its purpose, and the general objectives to which the section relates  (P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at pp. 236-37 and 243-55; see R. v. Cuerrier, [1998] 2 S.C.R. 371, per L’Heureux-Dubé J., and R. v. Hinchey, [1996] 3 S.C.R. 1128, per L’Heureux-Dubé J., at para. 12).

33                          Section 686 provides:

686. (1) On the hearing of an appeal against a conviction or    against a verdict that the appellant is unfit to stand trial or not criminally       responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is                              unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground                                     of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not                                     properly convicted on a count or part of the indictment, was                                                        properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any                                  ground mentioned in paragraph (a),

(iii) notwithstanding that the court is of the opinion that on any                                 ground mentioned in subparagraph (a)(ii) the appeal might be                                                                        decided in favour of the appellant, it is of the opinion that no                                                                                substantial wrong or miscarriage of justice has occurred; or

(iv) notwithstanding any procedural irregularity at trial, the trial                                 court had jurisdiction over the class of offence of which the                                                                            appellant was convicted and the court of appeal is of the opinion                                                                                     that the appellant suffered no prejudice thereby;

c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears to the court to be required by the verdict and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or

(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

(2) Where a court of appeal allows an appeal under    paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and

(a) affirm the sentence passed by the trial court; or

(b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

(4) Where an appeal is from an acquittal, the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

                                                                   . . .

(8) Where a court of appeal exercises any of the     powers conferred by subsection (2), (4), (6) or (7), it may make any order,      in addition, that justice requires.

34                      Section 686 describes the general powers granted to appellate courts to dispose of a criminal appeal.  It includes the power to grant a wide range of specific remedies depending on the nature and the extent of the error below.  For example, under s. 686(1)(b)(i) and s. 686(3), a court of appeal may dismiss an appeal and substitute the verdict that in its opinion should have been rendered where the court finds that the accused was properly convicted on at least a count or a part of the indictment.  In addition, where an appeal is from an acquittal and the verdict is not one of a court composed of a judge and jury, s. 686(4) provides a court of appeal the power to replace the verdict of acquittal with a verdict of guilty with respect to the offence of which the accused should have been found guilty but for the error of law.

35                      The general objective of s. 686 is to promote finality in criminal litigation, where that can be achieved, and to ensure that appellate courts are vested with the authority to grant remedies proportionate to the errors committed in the trial court.  Section 686 invests courts of appeal with the discretion and authority necessary to deal with the various errors that occur at the trial level in a manner which ensures that justice is done.

36                      Section 686(8) has a special role to play in this regard.  When a court of appeal orders a new trial pursuant to s. 686(2)  of the Criminal Code, s. 686(8) allows the court to make “any order, in addition, that justice requires”.  In this context, the remedial purpose of s. 686(8) is to ensure that the interests of justice are protected where ordering a new trial alone would not ensure that justice is done.  This remedial purpose should be broadly construed in order to enhance the ability of appellate courts to respond in a measured way to the nature and extent of the error in the proceedings below.

37                       I believe that it would be improper for this Court to state, as the Chief Justice does, that as a blanket rule a court of appeal can never order a new trial with limited verdicts.  In my opinion, the vast jurisdiction of a court of appeal to make any order is limited only by what “justice requires”.  The types of additional orders that “justice requires” will vary greatly from case to case.  As such, the approach of Doherty J.A, writing for the court in R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at p. 131, is, in my view, the proper one in the analysis of what justice requires:

The phrase “the interests of justice” is used throughout the Criminal Code . It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis.

38                      Similarly, what “justice requires” in a particular situation should be determined by the court of appeal on a case-by-case basis and that court should not be restrained in the exercise of its judicial discretion to fashion a particular type of  remedy under s. 686(8).  It is up to our Court of course, to review the exercise of that discretion on a case-by-case basis, and to determine whether in the particular circumstances of a case, the order to restrict the new trial to the resolution of certain issues is what “justice requires” (R. v. Hinse, [1995] 4 S.C.R. 597).

39                      The determination of what “justice requires” is informed by the remedial purpose of s. 686(8) and involves a consideration of both the individual interest of the accused in a fair trial and the collective interest in the proper administration of justice.  This is in accordance with the interpretation of similar expressions, such as the  “interests of justice” used in different sections of Part XXI of the Criminal Code  and  the “principles of fundamental justice” from s. 7  of the Canadian Charter of Rights and Freedoms  (for the Criminal Code  see Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775, s. 683(1)(d) (formerly 610(1)(d)); Bernardo, supra, s. 684(1);  R. v. Chek TV Ltd. (1986), 27 C.C.C. (3d) 380 (B.C.C.A.), at p. 383, per Craig J.A. concurring, s. 683(5) (formerly 610(5)); for s. 7  of the Charter  see R. v. O’Connor, [1995] 4 S.C.R. 411, at p. 458, per L’Heureux-Dubé J.; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 539, per La Forest J.; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Cunningham v. Canada, [1993] 2 S.C.R. 143; and R. v. Levogiannis, [1993] 4 S.C.R. 475, at p. 486, per L’Heureux-Dubé J.).

40                      Section 686(8) provides that a court of appeal’s discretion to make “any additional order” is limited only by what “justice requires”. The use of the word “any” emphasizes that every kind of order is within the ambit of that section.  The French text of s. 686(8), which reads that a court of appeal may “en outre rendre toute ordonnance que la justice exige”, confirms the same wide breadth of the provision.

41                      The listing of specific remedies in other subsections of s. 686, combined with the absence of any limiting language in s. 686(8), reinforces the position that Parliament did not intend to restrict the scope of a court of appeal’s powers under s. 686(8) (a similar finding was made by this Court regarding s. 443(1)(a) and (b) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 487), in R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, at p. 631).

42                      In Elliott v. The Queen, [1978] 2 S.C.R. 393, this Court broadly interpreted the jurisdiction of a court of appeal to make any order that justice requires under s. 686(8).  Ritchie J., for the majority, found that the British Columbia Court of Appeal had correctly exercised its jurisdiction under s. 613(8) (now s. 686(8)) in amending a count of the indictment in order to ensure that it conformed to the evidence at trial. Ritchie J. held at pp. 431-32:

In my view when Parliament authorized the Court of Appeal, in the exercise of its power, to order a new trial, to “make  any order, in addition, which justice requires” it must be taken as having authorized that Court under those circumstances to make any additional order which the ends of justice require whether the order for a new trial is dependent upon the additional order or not. I do not think that the wide powers conferred on the Court of Appeal by s. 613(8) are to be narrowly construed but rather they are designed to ensure that the requirements of the ends of justice are met, and are to be liberally construed in light of that overriding consideration.  [Italics in original; underlining added.]

43                      Wilson J., delivering a unanimous judgment in R. v. Provo, [1989] 2 S.C.R. 3, quoted the above passage with approval and characterized the scope of s. 613(8) (now s. 686(8)) at pp. 19-20, as follows:

In exercising its power under s. 613(2) the Court of Appeal is given a broad ancillary jurisdiction under s. 613(8) of the Code to make “any order, in addition, that justice requires”.  This Court has construed the powers granted to the Court of Appeal under s. 613(8) in a generous manner consistent with its broad remedial purposes.

                                                                   . . .

There is, in my respectful view, no reasonable alternative to a broad reading of the Court of Appeal’s ancillary jurisdiction under s. 613(8) given its broad wording and remedial purpose.  The section gives the Court of Appeal a broad supplementary power to make any order that justice requires when it exercises its appellate powers under the enumerated subsections of s. 613. [Emphasis added.]

More recently, in Hinse, supra, this Court confirmed that a generous interpretation of s. 686(8) which reflects its broad remedial purpose is appropriate.

44                      In addition, the Crown submitted an exhaustive list of case law detailing  the wide variety of orders made by appellate courts under s. 686(8).  Certain orders were made to: limit the new trial on the included offence where the evidence could not support a finding of guilt on the offence charged (R. v. Stanley (1977), 36 C.C.C. (2d) 216 (B.C.C.A.); R. v. Cook (1979), 47 C.C.C. (2d) 186 (Ont. C.A.); R. v. Ruptash (1982), 68 C.C.C. (2d) 182 (Alta. C.A.); R. v. Popoff (1960), 129 C.C.C. 250 (B.C.C.A.)); amend a count of the indictment (Elliott, supra); order a new trial pursuant to an amended information (R. v. Geauvreau, [1982] 1 S.C.R. 485); stay criminal proceedings which violate the community’s sense of fair play and decency (Hinse, supra); or, dissolve a conditional stay on a count to which the Kienapple principle against multiple convictions was applied (Provo, supra).  These cases illustrate the need to vest courts of appeal with a wide jurisdiction to make all kinds of orders tailored to the error made below.

45                      The approach of the Chief Justice is to restrict at the outset the types of orders which can be made pursuant to s. 686(8).  He relies on an analogy with s. 686(4) to determine that when a new trial is ordered is has to be a full new trial and not a new trial with limited verdicts.  I disagree for the following reasons.

46                      First, the language of s. 686(8) and the broad interpretation that mandates its broad underlying remedial purpose are inconsistent with a determination that certain classes of orders are outside its scope.  While the discretion granted under s. 686(8) to appellate courts is not unlimited, the proper approach is to review the exercise of that judicial discretion on a case-by-case basis and not to conclusively place entire classes of orders outside the jurisdiction of a court of appeal.

47                      Second, I find the analogy with s. 686(4) to be unconvincing.  The Chief Justice recognizes at para. 22, that s. 686(4) deals with appeals from an acquittal whereas this case deals with an appeal from a conviction pursuant to s. 686(2).  The wording of the two sections is different. Section 686(2)(b) does not provide for the restrictions imposed on jury verdicts by s. 686(4)(b)(ii).  Therefore, there is no rationale for reading s. 686(4) as imposing restrictions on s. 686(2).  The fact that s. 686(8) applies to both s. 686(4) and s. 686(2) does not mean that the restrictions that apply to s. 686(4) apply to s. 686(2).

48                      The Chief Justice states at para. 24 that “[t]he principle that is reflected in s. 686(4) is that great respect should be shown to juries”.  Again, this may be so regarding verdicts of acquittal by a jury, where s. 686(4) restricts a court of appeal from changing that verdict.  On appeals from verdicts of conviction by a jury however, there is nothing in s. 686(2) and s. 686(8) to indicate that the court of appeal is so limited.  In fact, the court can set aside the verdict on the grounds that it is unreasonable or cannot be supported by the evidence, for example, and direct a verdict of acquittal pursuant to s. 686(1)(a)(i) and s. 686(2).  Therefore, the application of s. 686(4), which is not at issue in this case, cannot be used to limit the jurisdiction granted to appellate courts by s. 686(8).

49                      The Chief Justice seeks to minimize the impact of limiting s. 686(8) by restricting his interpretation to jury verdicts and leaving for later the question of whether the same principles would apply to decisions by a judge alone (paras. 1 and 28).  In fact, the text of s. 686(8) makes no distinction between trial with judge alone and with judge and jury and I see no reason for this Court to create one.

50                      Having determined that the Court of Appeal of British Columbia had the jurisdiction under s. 686(8) to make all kinds of orders, limited only by what justice requires, I will now turn to question of whether it can restrict the new trial to verdicts of manslaughter or second degree murder.

III.    Power to Order a New Trial Restricted to Manslaughter or Second Degree Murder Verdicts Under Section 686(8)

51                          The appellant submits that, generally, when a new trial is ordered on the basis of misdirections on the defence of intoxication, it is a full new trial and not a limited new trial.  Although usually all issues are remitted to a new trial, in exceptional cases, such as where there is no question that the accused committed the guilty act, s. 686(8) can apply to limit the verdicts available on retrial.

52                          Orders made pursuant to s. 686(8) to restrict the issues on a new trial have been made where the only issue at the end of the appeal relates to the defence of entrapment or insanity.  For example, this Court’s decision in Pearson, supra, upheld the order for a restricted new trial on the issue of entrapment pursuant to s. 686(8).  Furthermore, the Courts of Appeal of Ontario and British Columbia made additional orders limiting a new trial to the issue of entrapment in R. v. Maxwell (1990), 61 C.C.C. (3d) 289 (Ont. C.A.); R. v. Barnes (1990), 54 C.C.C. (3d) 368 (B.C.C.A.), aff’d [1991] 1 S.C.R. 449; R. v. Laverty (1990), 80 C.R. (3d) 231 (B.C.C.A.), and supplementary reasons, November 1, 1990, Victoria Registry V00270.  As well, a five-member panel of the Ontario Court of Appeal restricted the retrial on the issue of insanity at the time of the commission of the offence in Reference re Regina v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135.

53                          A new trial restricted to specific verdicts may also be appropriate where the only issue at the end of the appeal is whether the accused is guilty of manslaughter or second degree murder.  In R. v. Wade (1994), 89 C.C.C. (3d) 39, reversed on another point [1995] 2 S.C.R. 737, the Ontario Court of Appeal restricted the new trial to whether the accused was guilty of manslaughter or second degree murder, thereby foreclosing the accused from raising the defence of automatism already rejected by a previous jury.   Doherty J.A. stated in Wade, supra, at p. 65:

From a  jurisdictional perspective, I can see no difference between limiting a new trial to the issue of entrapment or insanity, and limiting a new trial to the question of whether the appellant is guilty of murder or manslaughter. The authorities, considered along with the language of s. 686(8) and the command to interpret that language broadly found in R. v. [Provo], supra, satisfy me that this court has the jurisdiction to limit a new trial to the determination of whether the appellant committed murder or manslaughter.              

54                          Doherty J.A. in Wade, supra, at pp. 65-66, pointed out that trials limited to the issue of manslaughter or second degree murder are not unknown.  These trials occur when the accused admits causing the death of the victim but claims that he or she did not possess the state of mind required for murder.

55                          This said, I fully endorse the position of the Court of Appeal in Gorecki (No. 2), supra, and in Wade, supra, that an order restricting a new trial represents an exceptional remedy that justice will require in “special circumstances”.  In the case at bar, the Court of Appeal seems to have been guided by the “special circumstances” test set out in Wade, supra, and Gorecki (No. 2), supra. I will now turn to what constituted such “special circumstances” in these two cases.  I will subsequently examine whether this case falls within such special circumstances.

56                          In Gorecki (No. 2), supra, the accused was convicted by a jury of the murder of his wife and the Court of Appeal was asked to consider fresh evidence relating to his mental state at the time of the commission of the offence.  At trial, the accused did not raise that question and his only defence was that of accident.  The Court of Appeal found that the fresh evidence might show that he was mentally ill and could not recognize his illness, and therefore, this prevented him from making the insanity defence during the trial.  Consequently, the court ordered a new trial limited to raising the defence of insanity pursuant to s. 613(8) (now 686(8)).  The court observed at p. 149:

The Court of Appeal where it orders a new trial is empowered by s. 613(8) to make any order, in addition, that justice requires.  While we exercise our power to direct a new trial, we are satisfied that pursuant to s. 613(8) justice requires that in the special circumstances of this case the accused should be limited to raising the defence of insanity, the other defences having already been concluded on the first trial, affirmed on appeal. [Emphasis added.]

57                          In Wade, supra, Doherty J.A. also held that “special circumstances”  existed which warranted the order to limit the issues at the new trial.  In that case,  defence counsel admitted that the accused had attacked his wife and inflicted the injuries causing death and, at trial, raised the defence of automatism brought on by a variety of sleep disorders.  He was found guilty by a jury of second degree murder.  After an appeal and another trial, a second jury found him again guilty of second degree murder.  At the second trial, the judge decided not to leave manslaughter with the jury, and this triggered the appeal.  Doherty J.A. recalled that the defence of automatism brought by the accused was totally rejected by the jury, which was satisfied beyond a reasonable doubt that the accused had killed his wife.  Therefore, he ordered a restricted new trial as to whether the accused was guilty of second degree murder or manslaughter. He wrote at p. 65:

Here, as in Gorecki, there is no doubt that the appellant caused the death of the victim.  Nor, is there any doubt as to how he caused that death. There is no suggestion that provocation, intoxication or any other excuse or justification could possibly arise. This is emphatically not a case, like some, where there exists a realistic possibility that a new trial could take a radically different course than the previous trial.  [Emphasis added.]

58                          A consideration of these two cases and a purposive interpretation of  what “justice requires” leads me to conclude that an order restricting the verdicts on a new trial may exceptionally be available where it is beyond reasonable doubt that the accused committed the guilty act and the only outstanding issue relates to the legal quality of that act by reason of the accused’s mental state or by reason of possible excuses or defences, like entrapment.

IV.   Application to this Case

59                          Before making the order restricting the new trial, Lambert J.A., for the court, noted that by the time the trial was concluded, there was no doubt that the appellant shot Emily Alexander and this was not contested by the defence.  However he found that the trial judge left the jury confused in both his charge to them and in his response to their questions about the definition of intent, and the interrelationship between intent and intoxication.  Lambert J.A. held that it would be unsafe to uphold the conviction in light of this confusion.  On the basis that “identity was not in issue at the trial” and that “some relevant evidence and exhibits have been destroyed” ((1997), 85 B.C.A.C. 303, at p. 306), Lambert J.A. made the order limiting the new trial to the issue of whether the appellant was guilty of manslaughter or second degree murder.

60                          I will deal first with the issue of prejudice to the Crown due to the destruction of certain exhibits.  The Crown claims that due to the lateness of the filling of the appellant’s notice of appeal, certain exhibits were authorized to be destroyed and in fact were destroyed and as a result, the destruction of these exhibits has detrimentally affected the Crown’s ability to make its case in a new trial.  In addition, the Crown submits that it should not be forced to suffer any potential diminution of its ability to prove its case as a result of intervening events for which it bears no responsibility.

61                          However, the Crown concedes that the lateness in filling of the notice of appeal was not the appellant’s fault.  Further, the Court of Appeal found that the lengthy delay that triggered the destruction of the exhibits was not the fault of the accused, but rather the result of a breakdown in communications between the accused, the Legal Services Society of British Columbia and his lawyer who was appointed by the Society.  In addition, the appellant alleges that most of the exhibits that were destroyed can be re-obtained or reconstructed.  The Crown does not disagree that this is possible.  Therefore, on its own, I am of the view that the alleged prejudice to the Crown is not sufficient to justify in itself the order made.

62                          The alternative basis upon which Lambert J.A. makes his order for a limited trial is much more compelling.  In his decision Lambert J.A. held that “[b]y the time that the trial was concluded it was not contested by the defence that Mr. Thomas shot Emily Alexander” (p. 304), that “there was no doubt that Mr. Thomas shot Emily Alexander”, and that “identity was not in issue at the trial” (p. 306).  Referring to the interpretation of s. 686(8) in Wade, supra, Lambert J.A. ordered a new trial confined to the issue of whether the verdict should be one of second degree murder or of manslaughter.

63                          There is no doubt in this case about the fact that the appellant killed Ms. Alexander, nor is there any doubt about how it was done.  Counsel for the appellant admitted to the jury that the appellant caused the death of Ms. Alexander by means of an unlawful act, and that he was accordingly, guilty of at least manslaughter,  as shown by these excerpts from his closing address to the jury:

There is a difference between second degree murder and manslaughter and His Lordship will advise you as to the differences and what they are at law and his words on the law is final.  And there is no doubt here Mr. Thomas shot Emily, there is no doubt about that and I would never in my wildest dreams come before you and suggest otherwise.  We are asking you to use your common sense here and I don’t attempt to persuade you not to use it.  Clearly he shot Emily but you have to look at all the circumstances surrounding that.  You have to look at what the law refers to it as. Is it second degree murder? Is it manslaughter?

                                                                   . . .

Quite often in criminal trials we talk about many things such as identity of the accused, and date, time, place, and jurisdiction and other matters.  I have already indicated to you I don’t intend to be arguing those matters, and I am not going to.  It’s very clear that the base of the facts we know, we do know that Mr. Thomas shot Emily and there is no doubt about that but what you have to determine is what his intent was.

                                                                   . . .

My submission is there is a substantial body of evidence and facts before you as to the level of intoxication and it’s my submission there should be a reasonable doubt on the charge of second degree murder.  I am not suggesting to you Mr. Thomas has not done anything.  Clearly  Mr. Thomas shot and killed Emily and in my submission to you, however, it’s manslaughter and not second degree murder. [Emphasis added.]

64                          Moreover, the trial judge specified in his instructions to the jury that “[t]he nature of this case is such that it is unlikely that you will consider an acquittal because the evidence of the shooting is uncontroverted”.  He then led the jury to consider a verdict of either manslaughter or second degree murder.

65                          Accordingly, I cannot agree with the Chief Justice that, but for the admission of guilt by counsel for the appellant, “it is unlikely that the Court of Appeal would have had any confidence in the accused’s liability even for manslaughter” (para. 26).  There was overwhelming evidence tendered at trial against the appellant.  This evidence and defence counsel’s admission led the Court of Appeal to conclude that there was no doubt that the appellant killed Ms. Alexander.  As such, the order to restrict the new trial in this case is not “completely unrelated to the accused’s underlying innocence or culpability” or “at direct variance with its underlying judgment” (see Hinse, supra, at para. 34 and 33 (emphasis in original)) but is in fact totally connected to the appellant’s guilt.  A similar approach was applied by the majority’s decision in Pearson, supra, at para. 14.

66                          The appellant submits, albeit in a summary fashion, that the order made by the Court of Appeal in this case is inconsistent with the presumption of innocence.  His argument stems from the fact that the order precludes the court at the new trial from considering a verdict of acquittal.

67                          He also alleges that the order made by the Court of Appeal in this case breaches ss. 7  and 11( f )  of the Charter , without arguing further.   Although the Chief Justice alludes to ss. 7  and 11( d )  Charter  violations, he does not draw any conclusion in that respect.  The Charter issues are raised for the first time in this Court.  As such, we do not have the benefit of the reasons of the Court of Appeal and no constitutional questions were stated.  I will, however, comment briefly on these alleged violations.

68                          The presumption of innocence, guaranteed by s. 11( d )  of the Charter ,  only operates “until” the accused has been “proven guilty according to law”.  Someone who has been proven guilty at trial and appeals his or her conviction can no longer claim the presumption of innocence (see R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), and R. v. Noble, [1997] 1 S.C.R. 874, at para. 107).  The presumption of innocence is revived on appeal only in respect of the elements upon which the court of appeal sets aside the verdict.  If the court sets aside the entire verdict, then the presumption of innocence is revived for all elements of the crime (R. v. Potvin, [1993] 2 S.C.R. 880, at p. 912, per Sopinka J.).  If, on the other hand, the court finds that some elements of the offence have been proven beyond a reasonable doubt and orders a new trial restricted to the remaining elements, the presumption of innocence is revived only with respect to those  elements.  So long as the Crown bears the burden of proving every element of the offence beyond a reasonable doubt, the presumption of innocence is satisfied.  Where a new trial is restricted to limited issues, this is on the basis that the Crown has already discharged this burden with respect to the other elements of the crime.  Here, the error made with the instructions related wholly to the issue of intent and did not affect the fact that the jury found beyond a reasonable doubt that the appellant killed his common law partner.  Accordingly, the Court of Appeal only revived the elements relevant to the issue of intent.  On those elements, the accused is entitled to a full presumption of innocence.  In this case, the practical effect of this presumption is that the Crown must prove the intent required for second degree murder beyond a reasonable doubt.

69                          The same reasoning answers the suggestion that a new trial on restricted issues violates the right to a jury trial guaranteed by s. 11(f).  The jury found the accused guilty in a trial where the only error related to the mental element of the crime.  It follows that the jury must have concluded beyond a reasonable doubt that the accused committed the criminal act.  On the new trial, another jury will decide on the remaining elements of the alleged offence. The accused’s right to trial by jury is thus fully respected.

70                          It is also argued that in admitting at trial that he was guilty of at least manslaughter, the appellant waived his right to be presumed innocent and his  right to a trial by jury at a new trial limited to the issue of whether or not he is guilty of manslaughter or second degree murder.  In view of my conclusion that these rights have been fully respected, I need not consider this submission.

71                          The appellant will suffer no prejudice arising from the order made by the Court of Appeal in this case.  The only live issue that remained at the end of the trial was whether he was guilty of second degree murder or manslaughter.  In this respect, had the trial judge made no error, he would, at a minimum, have been convicted of manslaughter.  Therefore, the restricting order corrects the error made at trial and returns the appellant to the same position he was in, and admitted being in,  at the conclusion of the trial.  Doherty J.A. reached the same conclusion in Wade, supra.  He stated at p. 65:

He [the accused] will have every opportunity to challenge the case for the Crown on the issue of his intent, and to advance evidence which is relevant to that intent.  He will be foreclosed from relitigating the voluntariness of his conduct, but I see no prejudice or injustice in barring relitigation of an issue which has already been determined by a properly instructed jury. I am not aware of any principle of fairness which demands that an accused be given a second chance to present a defence because an error in law, unrelated to that defence, necessitates reversal of the verdict. That proposition carries the so called “sporting theory” of criminal justice too far. [Emphasis added.]

As such, limiting the new trial in this case to a determination of whether the appellant is guilty of second degree murder or manslaughter is perfectly fair to the appellant, in that it permits the appellant to fully litigate the only live issue, his level of intent, that remains undecided by a properly and fully instructed jury.

72                          To allow the appellant to disavow the acknowledgment of guilt and seek an acquittal at the new trial would, moreover, bring the administration of justice into disrepute.  In R. v. Buxbaum (1989), 70 C.R. (3d) 20 (Ont. C.A.), the accused sought to introduce fresh evidence on appeal with respect to his mental state in the hopes of raising an insanity defence.  However, during the  trial defence counsel deliberately chose not to raise that defence.  The Court of Appeal refused to admit the fresh evidence for the reason that it would not be in the “interest of justice” to do so, because it would “permit the appellant to now lead this alternative defence in this court” and to “permit him to resile from the position that he took before the jury and, indeed, to take a position which is completely inconsistent with it” (Buxbaum, at p. 35, to the same effect see Palmer, supra,  at p. 775).

73                          The search for the truth and the conviction of the guilty are certainly important parts of the collective interest in the administration of justice. In this case, there is no doubt that the appellant shot the deceased.  His counsel admitted that fact in his address to the jury.  What Doherty J.A. wrote in Wade, supra, at p. 66 applies with force:

Justice for the accused and the community is fully served by directing a new trial where the appellant may have his level of culpability determined according to law.  Justice no longer requires a determination of whether he is culpable at all.  That determination has been fairly made.

74                          These considerations lead me to conclude that the order to restrict the new trial to verdicts of manslaughter or second degree murder made pursuant to s. 686(8) was perfectly appropriate considering the nature and the extent of the wrong occasioned below and was required by justice in the special circumstances of this case.

75                          Before examining the second issue, I would like to briefly comment on the Chief Justice’s view at para. 27, that it could be detrimental to the accused to have a limited new trial in a case dealing with intent and intoxication since the law on these issues has changed since the appellant’s first trial was held.  To illustrate his point, the Chief Justice refers to this Court’s decision in R. v. Daviault, [1994] 3 S.C.R. 63, and the enactment of s. 33.1  of the Criminal Code  dealing with the defence of self-induced intoxication.  Such a change in the law, where relevant and available on the facts, might be a reason to decline to make an order for a restricted verdict under s. 686(8).   However, no such change touched this case.  There is no suggestion that the appellant was in a state resembling that of extreme intoxication akin to automatism as per Daviault, supra.  The only matter left in doubt at the end of the appeal was whether the accused was guilty of murder or manslaughter.

V.   The Motion for Extension of Time and to Order a New Trial

76                          On appeal, the Crown filed two affidavits to support its position that it would be prejudiced in the conduct of a new trial due to the destruction of exhibits and opposed the motion for extension of time on that basis.  The appellant does not agree  that the application for extension of time should have been tied to the determination that a new trial ought to be ordered upon a limited basis.  Furthermore, the appellant submits that, in determining whether s. 686(8) required a restricted new trial, the Court of Appeal erred in relying on affidavits tendered by the Crown in relation to the motion for extension of time.

77                          It is clear from the decision of the Court of Appeal that it was in the interest of economy of judicial time that the court decided to hear both matters together rather than consecutively.  There is no indication that the appellant objected to that decision at the time.  Furthermore, the appellant does not demonstrate that he suffered any real prejudice from that decision, apart from his claim that the admission of the affidavits in the conviction appeal gave the Crown an unfair advantage since it permitted the Crown to introduce new evidence and took the appellant by surprise.  The appellant could not possibly have been surprised by the Crown’s use of the affidavits.  The Crown submitted that, if a new trial was ordered, it would seek to restrict the scope of that new trial and would then rely in part on the loss of some evidence to support its position.  Therefore, I conclude that the Court of Appeal did not err in hearing the motion to extend time at the same time as the appeal and in relying on the Crown’s affidavits.

VI.   Conclusion

78                          In conclusion, I find that s. 686(8) accords broad powers to the Court of Appeal to grant remedies tailored to the errors made at trial and includes the power to make any ancillary order limiting the issues of a new trial.  These broad powers are only limited by what “justice requires”.  What is required by justice will vary depending on particular circumstances and should be determined on a case-by-case basis.  An order restricting the new trial to limited verdicts is an exceptional remedy that will be required by justice in “special circumstances”.  Such an order  may be appropriate where there is no doubt that the accused committed the criminal act and the only outstanding issue relates to the legal quality of that act.  Applying these principles, I am of the opinion that the Court of Appeal’s order restricting the new trial to limited verdicts of manslaughter or second degree murder, in this case, was appropriate given the special circumstances and in accordance with the requirements of justice.

VII.   Disposition

79                          For these reasons, I would dismiss the appeal.

Appeal allowed and full new trial ordered, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.

Solicitor for the appellant:  Sheldon Goldberg, Vancouver.

Solicitor for the respondent:  The Ministry of the Attorney General, Vancouver.