In R v. Chung,1 released today, the Supreme Court of Canada has provided important clarification regarding the application of the “question of law alone” standard of review. While this decision was issued in the context of a criminal appeal, it has broad implications on the standard of review applicable to appeals on questions of law alone in both criminal and civil appeals.
Lower Court Decisions
Mr. Chung, was charged with dangerous driving causing death. At trial and on appeal, there was no question that Mr. Chung had driven in an objectively dangerous manner and committed the actus reus of the offence. The trial judge had a reasonable doubt whether the respondent had the mens rea, the requisite guilty mind. The issue before the British Columbia Court of Appeal was whether the trial judge committed an error of law in finding that Mr. Chung lacked the requisite mens rea. The Court of Appeal found the trial judge erred in law, set aside the acquittal, and entered a conviction.
Supreme Court of Canada Clarifies Appellate Review on Questions of Law Alone
While the substantive issue before the Supreme Court of Canada was the mens rea required to convict an accused on charges of dangerous driving, the core issue on appeal was whether the trial judge made an error of law which allowed the Court of Appeal to intervene on a Crown appeal of Mr. Chung’s acquittal under s. 676(1)(a) of the Criminal Code. In a 4:1 decision (Karakatsanis J. dissenting), the Supreme Court of Canada dismissed the appeal.
Concerning the standard of review, Martin J., writing for the majority (Brown, Rowe, Martin, Kasirer JJ.), explained:
Under s. 676(1)(a), the Crown can only appeal an acquittal on a “question of law alone”. An appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof ... Therefore, the Crown cannot appeal merely because an acquittal is unreasonable…
Errors of law arise, for example, where “the legal effect of findings of fact or of undisputed facts raises a question of law” and where there is “an assessment of the evidence based on a wrong legal principle”... These two types of errors are somewhat similar; they both address errors where the trial judge’s application of the legal principles to the evidence demonstrates an erroneous understanding of the law, either because the trial judge finds all the facts necessary to meet the test but errs in law in its application, or assesses the evidence in a way that otherwise indicates a misapprehension of the law. [Citations omitted.]2
Justice Martin also provided guidance to appellate courts (and by extension, counsel) about the conduct of appellate review on questions of law alone:
When interpreting a trial judge’s reasons, appellate courts should not parse the reasons of the trial judge in a line by line search for errors. Instead, the reasons are to be “read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’” ... Appellate courts must attempt to understand the reasoning of the trial judge. However, even if the trial judge articulates the right test, appellate courts may find an error of law if the judge’s reasoning and application demonstrate a failure to properly apprehend the law... [Citations omitted.]3
The majority decision explained that it would not be an error of law for a trial judge to simply apply the correct test, consider all the circumstances, and come to an unreasonable conclusion: “However, it would be an error of law if the trial judge failed to compare the accused’s actions to what a reasonable person would have foreseen and done in all of the circumstances. This type of error is not a factual matter of weighing evidence, but rather it goes to the legal definition of the mens rea analysis for dangerous driving.” Ultimately, Martin J. found “two inter-related errors of law”: first, “the trial judge erred by applying a wrong legal principle”; and, second, “and most importantly”, the trial judge failed to apply the correct legal test in Roy by not assessing what a reasonable person would have foreseen and done in Mr. Chung’s circumstances.”4
Justice Martin further held:
Applying a wrong legal principle and failing to apply the correct legal test are two sides of the same coin. Both characterizations go to the same essential error of law in this case, which was a failure of the trial judge to properly consider the conduct of the reasonable person in all of the circumstances in determining whether there was a marked departure.5
Broader Implications for Standard of Review
While the application of the decision concerns mens rea in dangerous driving offences, Chung has potentially wide implications for appeals, both civil and criminal. Justice Martin’s general analysis and reasoning pertaining to the standard of review in statutory appeals on questions of law alone would appear to apply beyond the criminal context to any other statutory appeals on questions of law alone. It may also have broader application generally, to appeals contemplating the correctness review on questions of law.
What the decision also highlights, regardless of context, is that appellate review on questions of law is concerned with substance, not form. That is to say, even if a trial judge cites the correct legal test and refers to the governing principles in the case law, as the trial judge did in Chung, where the application of that test reflects an error in principle or demonstrates that the trial judge failed to actually conduct the analysis required by the correct legal test “This type of error is not a factual matter of weighing evidence, but rather it goes to the legal definition” and may constitute an error of law.
1 R v. Chung, 2020 SCC 8
2 Ibid at paras. 10-11.
3 Ibid at para. 13.
4 Ibid at paras. 16-17
5 Ibid at para. 18.
