The Narrowing Scope of Appellate Review: Has the Pendulum Swung Too Far?
JUTRAS D., “The Narrowing Scope of Appellate Review: Has the Pendulum Swung Too Far?” in Appellate Courts: Policy, Law and Practice (2006 Isaac Pitblado Lectures) (Winnipeg: The Law Society of Manitoba, 2006) II-1
In every Western jurisdiction, there are two competing conceptions of appellate review. The interventionist conception of appellate review allows appeal courts to readily correct errors on any issue other than those that are tied to the trial judge’s situation advantage. The deferential conception of appellate review allows appeal judges to intervene only when there are capricious judgments or egregious errors on any issues other than pure questions of law. With these conceptions in mind, the author reviews the Supreme Court of Canada’s decision in Housen, arguing that it effected a significant change to the appellate standard of review in Canada. Through a detailed analysis of its conclusions, the author determines that Housen offers a defensible, workable compromise between the two conceptions of appellate review that is no less indeterminate than the alternatives.
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