New Test for When an Appellate Court Can Raise a New Issue: R v Mian
In R v Mian,  2 SCR 689 [Mian], the Supreme Court of Canada (“SCC”) attempted to strike a balance between two competing roles for appellate courts – of neutral arbiter and of justice-doer. In the process, the SCC set a new precedent for determining when an appellate court can raise a novel legal issue.
Background: An Improper Cross-Examination Became a “New Issue”
At trial, Constable Drynan and Detective Werth gave conflicting testimony as to whether or not the search, detention or arrest of Mohammad Hassan Mian was a result of concern for officer safety. Defence counsel then cross-examined Detective Werth on the contradictory evidence given by Constable Drynan.
On appeal, the Alberta Court of Appeal (“ABCA”) raised the entirely new issue of whether the defence had “conducted an improper cross-examination of [Detective] Werth by asking him to comment on the veracity of Drynan’s testimony” (R v Mian, 2012 ABCA 302, para 28 [Mian, ABCA]). The ABCA found that the appeal should be allowed (Mian, para 24) and that Justice Macklin, the trial judge, had erred in law by admitting and relying upon the evidence from the impermissible cross-examination (para 26). The ABCA concluded that “the mistake was material, and that the Crown has demonstrated the verdict would not necessarily have been the same if the trial judge had not allowed the impugned cross-examination and admitted the evidence” (Mian, ABCA, para 46). On this basis, the appeal court ordered a new trial.
Balancing the Competing Tensions of Appellate Review
As stated by Justice Rothstein, for a unanimous SCC, there are two potentially competing tensions that govern the courts. On one hand, courts represent an adversarial system “which relies on the parties to frame the issues on appeal, and reserves the role of neutral arbiter for the courts…” (Mian, para 1). According to Justice Rothstein, the fundamental reason for preserving this system “is to ensure that judicial decision-makers remain independent and impartial and are seen to remain independent and impartial” (para 39).
On the other hand, there may be a “need for an appellate court to intervene in order to prevent an injustice” (para 1). According to Lord Denning, “a judge in not a mere umpire to answer the question ‘How’s that?’ His object above all is to find out the truth, and to do justice according to the law…” [emphasis added] (para 40). However, as stated by the ABCA in R v Phillips, 2003 ABCA 4 [Phillips], in intervening, the court must remain unbiased and refrain from “descend[ing] from the bench and becom[ing] a spectre at the accused’s counsel table, placing himself ‘in the impossible position of being both advocate and impartial arbiter’” (Phillips, para 24).
According to Justice Rothstein, the question that then must be answered is, “at what point can an appellate court disrupt the adversarial system and raise a ground of appeal on its own?” (Mian, para 1). It was this question that Justice Rothstein set out to answer in Mian.
The New Procedure for Deciding When an Appellate Court Can Raise a New Issue
The topic of whether or not a new issue can be raised by counsel on appeal has been discussed by the SCC in numerous cases: see Quan v Cusson,  3 SCR 712; R v W (G),  3 SCR 597; R v EMW,  2 SCR 542. However, little has been said regarding the ability of an appellate court to raise a new issue. As such, the purpose of Justice Rothstein’s decision, and the primary reason for why it is of critical importance, is to implement a test that outlines how an appellate court can operate while striking the appropriate balance between those two above-mentioned competing tensions (Mian, para 41).
The new test for determining whether or not an appellate court can raise a new issue is as follows: (1) the issue must be a new issue (para 29); (2) failing to raise a new issue would risk an injustice (para 41); and (3) the procedure followed by the court in raising the issue must be fair (para 54).
Justice Rothstein concluded that although the issue of the impugned cross-examination raised by the ABCA did qualify as a new issue (para 61), the issue failed at the second stage of the new test since there was no evidence to suggest that “failing to [raise the new issue] would risk an injustice” (para 41).
Justice Rothstein provided three reasons for his decision that the issue failed at the second stage. First, there was “nothing to indicate that the improper cross-examination factored into the decision-making process [of Justice Macklin] at all” (para 64). The issue raised by the ABCA was based on “one question asked in the course of the cross-examination of Detective Werth … [which was] comprised of two lines in the trial transcript” (para 63). Second, even if Justice Macklin had relied on the improper cross-examination in formulating his decision, Justice Rothstein was “not convinced that this had any material bearing on the outcome so as to raise a realistic risk on an injustice” (para 65). Third, the Crown neither objected to the improper cross-examination when it happened nor raised it as an issue on appeal (para 66).
Because the SCC found that the ABCA had erred in raising the issue, it was not necessary to determine if the ABCA had complied with the third stage of the test.
The SCC’s decision in Mian is of critical importance as it establishes a new test that is meant to place boundaries on the ability of an appellate court to interfere with the adversarial system by bringing forward an issue that has not been raised previously by counsel. Additionally, Justice Rothstein outlines for the courts some of the rare circumstances in which intervention by an appellate court might be warranted. While those examples provide guidance, they are not exhaustive, and, therefore, “the ability of appellate courts to intervene to ensure that justice is in fact done … [is not] unduly limit[ed]” (para 45).