The curative proviso (s. 686(b)(iii) of the Criminal Code) allows an appellate court to dismiss an appeal against conviction in cases where an appeal should be allowed but the circumstances giving rise to the appeal led to no substantial wrong or miscarriage of justice:
686(b)(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.
In R. v. Mayuran, 2012 SCC 31, Justice Abella, speaking for a unanimous seven member Supreme Court panel, applied the curative proviso to restore a second degree murder conviction that had been overturned by the Quebec Court of Appeal (there was a dissenting judgment making this an “as of right” appeal).
There were two questions for the Supreme Court. The first was whether the trial judge should have put the defence of provocation to the jury. Justice Abella explained the ruling of the majority of the Quebec Court of Appeal:
 On appeal, a majority in the Quebec Court of Appeal set aside the conviction and ordered a new trial. In its view, the trial judge ought to have put the defence of provocation to the jury based on the alleged telephone conversations from prison whereby Suganthini confessed to killing Dayani because she had been ridiculed by her.
Ultimately Justice Abella agreed with the dissenting justice found that there was no “air of reality” to this defence.
The second question is whether the Quebec Court of Appeal was correct in applying the curative proviso to four errors made by the trial judge in charging the jury (although this was technically a Crown appeal, this part of the Quebec Court of Appeals judgment went against the accused).
Justice Abella explained when the curative proviso is to be applied:
 The curative proviso can be applied in two situations: where the error is so harmless or minor that it could not have had any impact on the verdict; and where, even if the error is not minor, the evidence against the accused is so overwhelming that any other verdict would have been impossible to obtain (R. v. Van,  1 S.C.R. 716, at para. 34; R. v. Trochym,  1 S.C.R. 239, at para. 81; R. v. Khan,  3 S.C.R. 823, at para. 26).
The comments highly relevant to defence counsel were made by Justice Abella in the next paragraph:
 The defence had not objected at trial to any of the errors it raised on appeal, a fact that, while not determinative, “merit[s] consideration by the reviewing court” as an indication that the error was “neither serious nor significant” (R. v. Jaw,  3 S.C.R. 26, at para. 44; Van, at para. 43; R. v. Jacquard,  1 S.C.R. 314, at para. 38).
Essentially, what the court is saying is that they can consider whether a concern about a certain issue was raised at trial in determining if the issue is of enough relevance that the curative proviso should apply. This highlights the importance of raising concerns on the record before the trial judge at the time they occur, even if it is apparent the trial judge will not agree with the objection. Here, the concerns were not raised at trial.
In this case, Justice Abella found that the errors were minor and could not have affected the verdict, and restored the conviction.
This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at firstname.lastname@example.org.