When Will an Appeal Court Hear and Decide an Issue not Raised at Trial?
While an appellate court may hear and decide
new issues not raised at trial, its discretion to do so should not be exercised
routinely or lightly.
R.
v. Guindon, 2015 SCC 41 (CanLII),[2015] 3 S.C.R 3, at para. 22.
Before doing so, the court must be satisfied that the
new issue raised on appeal can be fully, effectively and fairly addressed even
though it was not raised at trial.
R.
v. K.R., 2009 ONCA 156 (CanLII), 246 O.A.C. 96, at para. 7.
It is not appropriate for an appellate court to
exercise its jurisdiction and decide a controversial issue in the midst of an
evidentiary vacuum. And where the
Appellant and the Respondent take the same position on the newly-raised issue, the
court does not have the benefit of having the issue advanced within the usual adversarial paradigm.
See for instance R. v. Dhanaswar, 2016 ONCA 229 (CanLII).
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