Appeal Procedure For Indictable Convictions

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95709)

General Principles

See also: Appeal Procedure and Appeal Procedure For Summary Convictions
Source of Authority

The Court of Appeal is a court of inherent jurisdiction and is not recognized in common law. It is a "creature of statute" where its powers to hear cases and make orders must come from statute. [1]

Under s. 683, the Court of Appeal's main powers consists of the authority to:

  • order the production of any writing, exhibit or other thing connected with the proceedings;
  • "order any witness ... to attend and be examined before the court of appeal..." and admit the testimony as evidence;
  • order an inquiry and report to a special commissioner and to act on such a report; and,
  • amend an indictment

The court also has "ancillary" authority to control its own process. [2]

  1. ↑ R v W(G), 1999 CanLII 668 (SCC), [1999] 3 SCR 597, per Lamer CJ, at para 8 - power of CA to hear criminal appeals is statutory
    Kourtessis v M.N.R., 1993 CanLII 137 (SCC), [1993] 2 SCR 53, per La Forest J, at pp. 69-70
    R v Meltzer, 1989 CanLII 68 (SCC), [1989] 1 SCR 1764, per McIntyre J, at p. 1773
  2. ↑ e.g. R v Zaharia, 1986 CanLII 4633, 25 CCC (3d) 149, per Zuber JA

Notice of Appeal

Section 678 provides a requirement that anyone filing an appeal to the Court of Appeal must provide notice:

Notice of appeal

678 (1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court.

Extension of time

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
R.S., c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s. 16.

– CCC (CanLII), (DOJ)

Note up: 678(1) and (2)

Provincial rules of court set out the notice requirements for each appealing party such as the form of notice, the form of service, and the time limit of service.[1]

Form of Notice

The notice must always take the form of notice in writing. It will typically have to include details such as:

  • the charges being appealed
  • the venue in which the trial took place, such as the level of court, the presiding judge or justice, dates of the proceeding, and the result of trial;
  • the grounds of appeal, including the governing sections of the Code.

Whether service must be personally upon the accused or their counsel will vary between jurisdictions. Similarly, whether the Crown needs to be served at all or whether the Court will automatically serve notice upon the Crown on behalf of the appellant will vary from province to province.

Where the Respondent Cannot Be Found
Service where respondent cannot be found

678.1 Where a respondent cannot be found after reasonable efforts have been made to serve the respondent with a notice of appeal or notice of an application for leave to appeal, service of the notice of appeal or the notice of the application for leave to appeal may be effected substitutionally in the manner and within the period directed by a judge of the court of appeal.
R.S., 1985, c. 27 (1st Supp.), s. 140; 1992, c. 1, s. 60(F).

– CCC (CanLII), (DOJ)

Note up: 678.1

Rules may permit substituted service on notice, but when they do, they require a high standard of proof.[2]

  1. ↑ E.g.
    NS: Rule 91.04 Civil Procedure Rules
  2. ↑ e.g. see R v Goodhart, 2012 ABQB 712 (CanLII), per Wilson J - substituted notice to accused quashed

Late Notice

Section 678(2) provides that where late notice is given:

678
[omitted (1)]

Extension of time

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
R.S., c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s. 16.

– CCC (CanLII), (DOJ)

Note up: 678(2)

An extension of time for filing and service of notice of appeal typically consideration of: [1]

(a) Whether the applicant showed a bona fide intention to appeal within the appeal period;
(b) Whether the applicant has acted with reasonable diligence or has reasonable excuse for delay; and
(c) Whether there is merit to the proposed appeal.

The principle of "finality" recognizes that due process has temporal limits and can be extinguished in time.[2]

An alternative list of considerations includes the following:[3]

(a) Whether the applicant formed a bona fide intention to appeal and communicated that intention to the opposing party within the prescribed time;
(b) Whether counsel moved diligently;
(c) Whether a proper explanation for the delay has been offered;
(d) The extent of the delay;
(e) Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
(f) The merits of the proposed appeal.
Merit

The factor of merit to the appeal is not a "difficult threshold". It only requires that the appellant show a "realistic grounds which, if established, appear of sufficient substance to be capable of convincing a panel of the court to allow the appeal."[4] In New Brunswick, it must "demonstrate a serious chance of success."[5] While in Saskatchewan, it must have a "reasonably arguable ground"[6]

In determining if there is an "arguable issue", the issue should be "reasonably specific". The chambers judge should not consider "evidence nor arguments relevant to the outcome."[7]

Open-Ended List

The factors are not a fixed list.[8] Other suggested factors include:[9]

  1. whether the consequences of conviction were out of proportion to the penalty imposed;
  2. whether the Crown will be prejudiced; and
  3. whether the applicant has “taken the benefit of the judgment:”

The judge has no jurisdiction to correct service retroactively.[10]

If "service of the notice of appeal is out of time and thereafter an order is made extending the time for service, the notice of appeal must be re-served within the extended time."[11]

  1. ↑ R v Donaldson, 2005 SKQB 479 (CanLII), 273 Sask R 12, per Currie J
    R v Menear, 2002 CanLII 7570 (ON CA), [2002] OJ No 244, per curiam, at para 20
    R v Spencer, 2015 NSCA 99 (CanLII), per Fichaud JA
    R v REM, 2011 NSCA 8 (CanLII), 947 APR 258, per Beveridge JA
  2. ↑ R v Letiec, 2015 ABCA 123 (CanLII), 322 CCC (3d) 306, per Wakeling JA, at para 7
    R v Canto, 2015 ABCA 306 (CanLII), 329 CCC (3d) 169, per Slatter JA, at para 10
  3. ↑ R v Chan, 2012 ABCA 250 (CanLII), 292 CCC (3d) 19, per Slatter JA, at para 24
  4. ↑ Spencer, supra, at paras 12 to 13
  5. ↑ R v Stapleton (2000) 225 NBR (2d) 260(*no CanLII links)
  6. ↑ R v Brittain, 2008 SKCA 104 (CanLII), 311 Sask R 175, per Richards JA
  7. ↑ Coughlan v Westminer, 1993 CanLII 3254 (NS CA), 349 APR 171, per Freeman JA, at para 11
  8. ↑ Donaldson, supra, at para 18
    Menear, supra, at para 20
    Blin v Boudreau, 2015 NSCA 78 (CanLII), per Bryson JA, at para 6- re civil appeal extension, using same test
  9. ↑ Donaldson, supra, at para 18
  10. ↑ R v Bouchard, 2012 ONSC 7174 (CanLII), per Pierce J, at para 10
    R v Holmes, 1982 CanLII 1977 (ON CA), 2 CCC (3d) 471, per Martin JA cf. R v Vinet, 2011 BCSC 1928 (CanLII), per Schultes J
  11. ↑ Holmes, supra

Extention of Time to Appeal

The provincial rules of court will generally govern the requirements for appeal, including time limitations.

The Court of Appeal has the discretion to extend the period of time to appeal. It is necessary that the extension be "in the interests of justice."[1]

The court may look at whether there was a bona fide intention to appeal within the time limitation and there was a reasonable excuse for the delay.[2]

The presence of communication with the opposing party of an intention to appeal will be a factor to consider on the exercise of discretion to extent the period of time to appeal.[3]

Crown Extention

In most cases, the Crown seeks extention on the basis that the respondent is unavailable to be served with notice of appeal.[4]

  1. ↑ R v REM, 2011 NSCA 8 (CanLII), 947 APR 258, per Beveridge JA
  2. ↑ R v RA, 2020 NSCA 3 (CanLII), per Beveridge JA, at para 11
    REM, supra, at para 39 ("Both in Nova Scotia, and elsewhere, the criteria to be considered in the exercise of this discretion has been generally the same. The Court should consider such issues as whether the applicant has demonstrated he had a bona fide intention to appeal within the appeal period, a reasonable excuse for the delay, prejudice arising from the delay, and the merits of the proposed appeal.")
  3. ↑ RA, supra, at para 24
    R v Roberge, 2005 SCC 48 (CanLII), [2005] 2 SCR 469
  4. ↑ RA, supra, at para 13

Report by Trial Judge

The Court of Appeal may order provincial court judge to make a report relating to a case:

Report by judge

682 (1) Where, under this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], an appeal is taken or an application for leave to appeal is made, the judge or provincial court judge who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish it or him with a report on the case or on any matter relating to the case that is specified in the request.
[omitted (2), (3), (4) and (5)]
R.S., 1985, c. C-46, s. 682; R.S., 1985, c. 27 (1st Supp.), ss. 143, 203; 1997, c. 18, s. 96.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 682(1)

Section 682 is considered a "historical anachronism" from the days when full transcripts of decisions were rare.[1] It should only be permitted "where something has occurred which is not reflected on the record upon which opposing counsel cannot agree."[2]

It should be used "rarely" and has a tendency to do more to influence the Court of Appeal rather than assist the Court.[3]

  1. ↑ R v AWE, 1993 CanLII 65 (SCC), [1993] 3 SCR 155, per Cory J, at para 190
  2. ↑ AWE, ibid., at paras 191 to 192
  3. ↑ R v Dhillon, 2014 BCCA 182 (CanLII), per Levine JA

Amending Indictments or Informations

Section 683(1)(g) that provides an appeal court with the authority to amend an indictment or information on appeal. In deciding whether to amend, an appeal court should consider:[1]

  1. the original indictment;
  2. the evidence at trial;
  3. the positions of the parties at trial;
  4. the instructions of the trial judge;
  5. the verdict of the jury; and
  6. the issues raised on appeal.
Powers of court of appeal

683 (1) For the purposes of an appeal under this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], the court of appeal may, where it considers it in the interests of justice,

[omitted (a), (b), (c), (d), (e), (f)]
(g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

[omitted (2), (2.1), (2.2), (2.3), (3), (4), (5), (5.1), (6), and (7)]
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141; 1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67; 2008, c. 18, s. 29; 2019, c. 25, s. 281.

– CCC (CanLII), (DOJ)

Note up: 683(1)

This section permits amendments to the information or indictment "where the amendment cures a variance between the charge laid and the evidence led at trial regardless of whether the amendment materially changes the charge, substitutes a new charge for the initial charge, or adds an additional charge"[2]

The court of appeal has broad authority to amend the information or indictment "unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal."[3] The burden is on the Crown to show that the accused had "full opportunity to meet all issues raised by the charge as amended" and the defence would have been conducted the same way.[4]

This power promotes "determination of criminal cases on their merits."[5]

  1. ↑ R v Fraser, 2007 SKCA 113 (CanLII), 411 WAC 210, per Klebuc JA, at para 60
  2. ↑ R v Irwin, 1998 CanLII 2957 (ON CA), 38 O.R. (3d) 689 (C.A.), per Doherty JA at pp. 699-700
    R v Wilson, 2022 ONCA 857 (CanLII), per Roberts JA, at para 31
  3. ↑ Wilson, ibid., at para 31
  4. ↑ Wilson, ibid., at para 32
    Irwin at p. 702 (OR)
  5. ↑ R v A.S., 1998 CanLII 14610 (ON CA), 130 CCC (3d) 320, per Finlayson JA, at para 4, leave to appeal refused, [1998] S.C.C.A. No. 636
    Wilson, supra, at para 31

Disclosure Motion

An accused may apply to the court of appeal for an order of disclosure, usually in the context of a fresh evidence application.

Third party records can be obtained through an application under s. 683. These production orders apply the same law as at trial level.[1] The applicant must show:[2]

  1. There is a connection between the request for production and the fresh evidence he proposes to adduce in that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence; and
  2. There is a reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.
  1. ↑ R v Trotta, 2004 CanLII 60014 (ON CA), [2004] OJ No 2439 (CA), per Doherty JA
  2. ↑ R v Hobbs, 2010 NSCA 32 (CanLII), 916 APR 327, per Beveridge JA, at para 28

Re-opening an Appeal

The Court of Appeal has "inherent jurisdiction to re-open an appeal."[1] It is an "extraordinary power" that is to be "exercised rarely" and requires "the demonstration of a potential miscarriage of justice."[2]

Factors to consider include:[3]

  1. Finality is a primary but not always determinative factor.
  2. The interests of justice include finality and the risk of a miscarriage of justice.
  3. The applicant must make out a clear and compelling case to justify a re-opening.
  4. If the case has been heard on the merits the applicant must show that the court overlooked or misapprehended the evidence or an argument.
  5. The error must go to a significant aspect of the case.

There should be a demonstrated "potential miscarriage of justice."[4]

  1. ↑ R v Chudley (#1), 2016 BCCA 142 (CanLII), per curiam, at para 3
    R v Chudley (#2), 2015 BCCA 391 (CanLII), 125 WCB (2d) 129, per Donald JA, at para 9
    R v Hummel, 2003 YKCA 4 (CanLII), 175 CCC (3d) 1, per Donald J
  2. ↑ Chudley (#1), supra, at para 3
  3. ↑ Chudley (#2), supra, at para 9
    Hummel, supra, at para 24
  4. ↑ Chudley (#2), supra, at para 10
    R v Jahanrakhshan, 2013 BCCA 398 (CanLII), per Donald J, at para 5

Dissents

Specifying grounds of dissent

677 Where a judge of the court of appeal expresses an opinion dissenting from the judgment of the court, the judgment of the court shall specify any grounds in law on which the dissent, in whole or in part, is based.
R.S., 1985, c. C-46, s. 677; 1994, c. 44, s. 67.

– CCC (CanLII), (DOJ)

Note up: 677

Summary Dismissal

Summary determination of frivolous appeals

685 (1) Where it appears to the registrar that a notice of appeal, which purports to be on a ground of appeal that involves a question of law alone, does not show a substantial ground of appeal, the registrar may refer the appeal to the court of appeal for summary determination, and, where an appeal is referred under this section, the court of appeal may, if it considers that the appeal is frivolous or vexatious and can be determined without being adjourned for a full hearing, dismiss the appeal summarily, without calling on any person to attend the hearing or to appear for the respondent on the hearing.

Summary determination of appeals filed in error

(2) If it appears to the registrar that a notice of appeal should have been filed with another court, the registrar may refer the appeal to a judge of the court of appeal for summary determination, and the judge may dismiss the appeal summarily without calling on any person to attend the hearing or to appear for the respondent on the hearing.
R.S., 1985, c. C-46, s. 685; 2008, c. 18, s. 30.

– CCC (CanLII), (DOJ)

Note up: 685(1) and (2)

The Court of Appeal may dismiss without reasons where they are of the view, after reading written and oral submissions, that the appeal is frivolous or vexatious.[1]

The court may further order that the appellant be prohibited from filing any further appeals without the permission of a member of the court.[2]

  1. ↑ e.g. R v Olumide, 2017 ABCA 366 (CanLII), per curiam
  2. ↑ e.g. Olumide, ibid.
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