LE TRAITEMENT EN APPEL DES QUESTIONS DE FAIT, QUESTIONS DE DROIT ET QUESTIONS MIXTES

Abstract

It is generally considered that every question that arises in an appeal belongs to one of three categories: questions of fact, questions of law and mixed questions of fact and law. However, there actually are four types of questions that can arise in a appeal, because the notion of mixed questions relates to two different types of questions that are not always sufficiently distinguished: the first are questions that relate to legal conclusions drawn at first instance from proven facts, the second are questions that relate to legal conclusions drawn at first instance from the evidence adduced. Furthermore, the recent decisions of the Supreme Court of Canada seem to rest on a fairly coherent theory of the treatment to be afforded to these different types of questions in appellate proceedings. The cornerstone of this theory is a fundamental principle according to which the primary role of appellate courts is to delineate and refine legal rules while ensuring their universal application, rather than to serve the particular interests of the parties in dispute. However, certain aspects of the Supreme Court’s jurisprudence deserve to be clarified, if not reexamined, in order to enhance its coherence.