The Curative Proviso : When Being Wrong Doesn't Matter

Section 686(1)(b)(iii) (the “curative proviso”) of the Criminal Code permits an appellate court to uphold a conviction despite error of law committed by the trial judge where that error has not led to a substantial wrong or miscarriage of justice. 

The “curative proviso” is to be applied only in those cases where the outcome of the trial, irrespective of the error, would necessarily have been the same.

Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739). 

The onus of establishing that this high standard is met is on the Crown.

R. v. Jolivet, 2000 SCC 29 (CanLII), [2000] 1 S.C.R. 751; R. v. Khan, 2001 SCC 86 (CanLII), [2001] 3 S.C.R. 823; R. v. Van, 2009 SCC 22 (CanLII), [2009] 1 S.C.R. 716.

The curative proviso may be applied, according to its modern interpretation, where the Crown can establish on a balance of probabilities that the legal error is harmless, in the sense that no prejudice has resulted, or that, despite any prejudice caused by the trial judge’s error of law, the evidence against the accused is so overwhelming that a trier of fact would inevitably convict.

Khan, at paras. 26-31; Jolivet, at paras. 48-54; Van, at paras. 34-36.

Not to be applied proprio motu

The law is clear that it is not open to an appellate court to apply the curative proviso on its own motion.

R v. Bisson, 2010 ONCA 556, 258 C.C.C. (3d) 338, at para. 2.

The Supreme Court has stated clearly that the proviso should be applied only upon submission from a party.

R v. Pétel, [1994] 1 S.C.R 3, at p. 18.

The Court cannot apply the proviso proprio motu; to do so is an error in law.  As the Crown has the burden of showing that this provision is applicable, its reliance upon the application of the provision must be express (and not implicit).

See R. v. P.G., 2017 ONCA 351, at para. 14; R v. Pétel, at p. 17; R v. McMaster, [1996] 1 S.C.R. 740, at para. 37.