Comment: The Curative Proviso; to apply or not to apply, that is the question...

The curative proviso is a powerful tool on appeal; it is also one that often highly contentious. The Supreme Court's recent ruling in R v O'Brien, 2011 SCC 29 is yet another example of this.  In O'Brien the respondent was charged in relation to the robbery of a variety store; the robbery was committed by someone wearing a blue Halloween mask.  During the robbery a knife was also used.  The next morning the police recovered a blue Halloween mask, a large knife and the plastic cover from the store's cash register (that had been taken) near the store; subsequent DNA testing identified the assailant as a match.  
At trial [2009 NSSC 194] the DNA evidence become effectively the only evidence identifying the respondent as the robber.  During the course of the trial, both in chief and cross-examination, the investigating officer made reference to the respondent as a known offender and someone who the police knew well to be involved in criminal conduct [para 26].  No objection was made to this evidence being elicited.  The respondent was convicted and appealed.

On appeal [2010 NSCA 61] the respondent argued that the bad character evidence was inadmissible and impacted on the verdict.  The Crown agreed that it was inadmissible but argued that the curative proviso should apply.  The majority allowed the appeal and ordered a new trial.  Fichaud JA, in dissent, would have applied the curative proviso, noting that the error was harmless:
The trial judge’s written reasons satisfy me affirmatively that the improper evidence had no impact.  This, in my view, satisfies the Crown’s burden under the proviso.  The judge’s words that he relied “entirely on the DNA evidence” to connect Mr. O’Brien to the robbery exclude any imputation to the judge of a veiled line of reasoning sourced in [the investigating officer’s] problematic testimony.  My colleague does not explain how such a veiled line of reasoning can co-exist with the judge’s clear statement that he relied “entirely on the DNA evidence.”  My colleague says that if the judge had “arrived at his conclusion by expressly relying on evidence untainted by the impugned evidence”, he might take a different view of the proviso.  By my reading of the decision, that is what the judge did. . . .
. . . Nothing in the decision suggests, even obliquely, that [the investigating officer’s] improper character testimony figured in the identification. [para 10]
The Crown appealed.  Abella J on behalf of the majority allowed the Crown's appeal.  It was clear, she held, that the trial judge relied "entirely" on the DNA evidence and therefore did not rely on the bad character evidence.  The following comments (an honourable mention for the "quotable quotes" section) are instructive:
The trial judge said in his reasons that he relied “entirely” on the DNA evidence (para. 8).  That meant that he did not rely on the character evidence.  Imputing such reliance into reasons that state the contrary creates a new, unchartable universe of appellate review where even if the reasons reveal a proper grasp of the facts and the law, the trial judge may nonetheless find the integrity of his or her decision undermined by the possibility that judicial silence on an issue will be interpreted as “unconscious” judicial error [para 16].  [Emphasis added]. 
In conclusion, Abella J held that the curative proviso should apply; the error was harmless.
In dissent, Binnie J would not have applied the curative proviso.  In so concluding Binnie J first noted his disagreement with the interpretation of "entirely":
Nor should the Court’s refusal of a new trial hang on the thread of the trial judge’s use of the word “entirely” which — it seems to me — just reflects the fact that there was no other identification evidence before him.  If he had intended by the word “entirely” to distance himself from the inadmissible propensity evidence, I expect he would have said so [para 35].
Based on this, Binnie J found that the error was not harmless as the potential danger of the inadmissible evidence could not simply be ignored based on the reference to "entirely". 
A couple of points are worth noting in relation to this decision.  First, the impending decision in R v Sarrazin (on appeal from the Ontario Court of Appeal 2010 ONCA 577) should be interesting.  Given the differing views the members of the Court appear to have on the applicability of the curative proviso, it will be interesting to see how they handle Doherty JA's refusal to apply the curative proviso on the view that the failure to leave attempted murder with a jury that returned a guilty verdict on murder could have subconsciously impacted on their deliberations and verdict - especially in the absence of any indication that it did.
Second, there is an interesting reference to R v Mars, 2006 CanLII 3460 (ON CA).  In Mars the Ontario Court of Appeal overturned a verdict essentially finding that since the only evidence was a fingerprint found on a pizza box linked to the offence the verdict was unreasonable.  Here, the majority of the Court of Appeal held that the verdict - based "entirely" on the respondent's DNA being on items linked to the robbery - was not unreasonable.  Interestingly, on appeal to the Supreme Court the only issue appears to have been the applicability of the curative proviso.  It would be an interesting exercise - and perhaps the subject of another blog - to compare the ratio of Mars and the NSCA's decision in O'Brien.
DG Mack