Duhaime's Law Dictionary

Miscarriage of Justice Definition:

A substantial wrong which occurs during a trial which so infects the proceedings as to merit quashing the result on appeal.

In the practise of law, miscarriage of justice is used in the context of appeals from civil or criminal cases. An appellate court, based on the common law or statutes which set out the standards of an appeal, will generally accept an appeal if a miscarriage of justice can be made out. This, to protect not only the greater interests of the confidence of the public in the justice system, but to put the appellant back to the position he or she was in before the decision infected by the miscarriage of justice.

Not any procedural error, or even an error of law automatically makes such a case.

In the United States of America, Justice Seawell of the Supreme Court of California wrote this in Herbet v Lankershim (1937):

"The phrase miscarriage of justice used as descriptive of that condition of a cause which justifies the reversal of a judgment, has no hard and fast definition. It seems assured, however, that where errors have been committed, and where the appellate court finds that upon the record it is seriously doubtful that without such errors the defendant would have been convicted, then it may well be that errors which otherwise would not be considered to be seriously prejudicial, will require a reversal.

"The rule applies to civil as well as to criminal cases."

In 1927, Justice Dundedin of the Privy Council (whom the British, in accordance with their parochial tradition, called "Viscount Dunedin") wrote in Robins:

"... miscarriage of justice ... means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all."

In Fanjoy v R (1985), Justice McIntyre of Canada's Supreme Court wrote:

"A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice. It is not every error which will result in a miscarriage of justice, the very existence of the proviso to relieve against errors of law which do not cause a miscarriage of justice recognizes that fact."

In R v Duke, Justice McClung of the Alberta Court of Appeal wrote, in reference to an appeal and the Canadian Criminal Code:

"... the determination of whether a miscarriage of justice has occurred rests on broader considerations than those attaching to the demonstration of a substantial wrong. Proof of actual prejudice resulting from an error of law is not requisite to a finding that a miscarriage of justice has occurred. It may be enough that an appearance of unfairness exists."

In Lin v Tang, Justice Huddard of the British Columbia Court of Appeal opined:

"Miscarriage of justice is a difficult concept. It is not simply unfairness as viewed by the party who perceives himself the victim of an unfair process.... In my view, miscarriage of justice means that which is not justice according to law. A miscarriage of justice will almost always be procedural. The blemish must be such as to make the judicial procedure at issue not a judicial procedure at all."

French: erreur judiciaire (preferred French term) but also, to some French and bilingual jurists, déni de justice.


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