Appeals

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2023. (Rev. # 92338)

Introduction

An appeal is an application to review a matter that has been decided by a Court. The appeal is directed to the "higher" level of court above the level of the deciding court.

More precisely, an appeal is a review of an order. It is not a review of the reasons of a Court per se.[1]

The venue for the appeal depends on the venue and mode of the original proceedings.[2] Matters that are elected indictably are appealed to the Court of Appeal while matters that are summary conviction offences are appealed to the Supreme Court of the province.[3] With some exception, the type of conviction does not determine the forum of appeal.

If the accused is prosecuted indictably but convicted of a lesser summary offence, the appeal is to proceed as if by indictment.[4]

Purposes

An appeal is a process by which a court can review orders or judgments. It is not simply to review "reasons" of a judge per se.[5] </ref>

The appeal process is supposed to protect against wrongful convictions and "enhance the fairness of the process."[6]

One of the roles of appellate level courts is to "rein in overly elastic interpretation ... provided the courts stop short of judicial amendment."[7]

The process, however, must be limited as there is a cost. The appeal process takes away from the timeliness and finality of a verdict. It is also a far from "ideal" way to resolve a criminal matter.[8]

Guilty Pleas

Generally, a guilty plea to an offence includes a waiver of any right of appeal against conviction.[9]

History

The current right of statutory was introduced in 1923 with Act to amend the Criminal Code, S.C. 1923, c. 41, s. 9, through the creation of what is now Part XXI and Part XXVI. [10] It was closely modeled on the UK's Criminal Appeal Act, 1907 (U.K.), c. 23.[11]

It was in 1930, the appeal provisions were amended to include Crown appeals on questions of law.[12]

  1. Teck Cominco Metals Ltd. v British Columbia, 2009 BCCA 3 (CanLII), 264 BCAC 164, per Frankel JA (in Chambers), at para 20 ("Appeals are taken against orders, not reasons for judgment")
  2. s. 813
  3. R v Edmunds, 1981 CanLII 173 (SCC), [1981] 1 SCR 233, per McIntyre J
  4. R v Yaworski, 1959 CanLII 494 (MB CA), 31 CR 55, per Tritschler JA
  5. R v Baasch, 2023 NUCA 7 (CanLII), per curiam, at para 44 R v Sheppard, 2002 SCC 26, para 4, [2002] 1 SCR 869
    R v Elliott, 2014 ABCA 431, para 4, 13 Alta LR (6th) 407
    Ratiopharm Inc v Pfizer Canada Inc, 2007 FCA 261, para 6, 60 CPR (4th) 165
    NB: s. 40 of of the Supreme Court Act provides right to leave on reasons alone, see Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd, 2015 SCC 53 (CanLII), [2015] 3 SCR 419, at para 13
  6. R v RR, 2008 ONCA 497 (CanLII), 234 CCC (3d) 463, per Doherty JA, at para 16
  7. Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ, at para 122 - dissenting in part
  8. RR, supra, at para 16
  9. See Guilty Plea
  10. Public Prosecution Service of Canada Deskbook at s. 3.2
  11. R v Meltzer, 1986 CanLII 1172 (BC CA), 29 CCC (3d) 266, at para 45
  12. Deskbook, , ibid.

Sources of Right of Appeal

The right of appeal arises only from statute.[1] Where the matter is criminal in character, only the federal government has the power to create a right of appeal.[2]

At common law, there are no means of appealing convictions or acquittals for indictable offences.[3] The right to appeal an indictable offence to the provincial Court of Appeal is derived from the Criminal Code in Part XXI. Section 672 explicitly provides:

Procedure abolished

674 No proceedings other than those authorized by this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] and Part XXVI [Pt. XXVI – Extraordinary Remedies (ss. 774 to 784)] shall be taken by way of appeal in proceedings in respect of indictable offences.
R.S., c. C-34, s. 602.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 674

There are still the related common law remedies of Habeas Corpus, Mandamus and Certiorari. However, the common law writ of error and writ of error coram nobis was removed by the Criminal Code in 1892.[4]

The statutory right of appeal exists for the accused on questions of fact and mixed fact/law. The crown's statutory right to appeal exists on questions of law alone. Appeals on sentence by either Crown or Accused is considered a separate basis of appeal.

Where there is no right to appeal granted by statute, the party seeking appeal must apply and be granted leave for appeal before the court can assess the merits of the appeal issues.

No Interlocutory Right of Appeal

There is a long-standing rule that the can be no interlocutory right of appeal of criminal matters as they are instruments of delay.[5]

The reason for this rule includes (1) the opportunity for "more opinions" does not necessarily serve the ends of justice and (2) "there should not be unnecessary delay in the final disposition of proceedings" of a "criminal character"; (3) the interminability of interlocutory appeals would increase costs of the proceedings; and (4) a post trial review permits a "fuller view" and "more complete picture of the evidence and the case."[6]

There are limited exceptions for judicial review under a prerogative writ or in specific circumstances under the Evidence Act.

  1. Kourtessis v MNR, 1993 CanLII 137 (SCC), [1993] 2 SCR 53, per La Forest J ("Appeals are solely creatures of statute...there is no right of appeal on any matter unless provided for by the relevant legislature.")
  2. Knox Contracting Ltd v Canada, 1990 CanLII 71 (SCC), [1990] 2 SCR 338, per Sopinka J (dissenting on another issue)
  3. R v Waugh, 2009 NBCA 23 (CanLII), 246 CCC (3d) 116, per Drapeau CJ, at para 15
  4. R v Reddick, 1992 CanLII 1900 (BC CA), 13 BCAC 239, per Goldie JA
    Ross v Prince Albert Correctional Centre, 1997 CanLII 11360 (SK QB), 151 Sask R 79, per Rothery J
  5. R v Mills, 1986 CanLII 17 (SCC), [1986] 1 SCR 863, per McIntyre J, at para 271
  6. Kourtessis v MNR, 1993 CanLII 137 (SCC), [1993] 2 SCR 53, per La Forest J

Role of Appellate Justices

An appellate court's role includes the power to "rein in overly elastic interpretations" found within legislation so long as it falls should of "judicial amendments."[1]

The role also includes "providing guidance to trial judges on the application of discretionary rules."[2]

  1. R v SDL, 2017 NSCA 58 (CanLII), 352 CCC (3d) 159, per MacDonald CJ, at paras 9 to 10, 17
    Canadian Foundation for Children, Youth & the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ, at para 122
  2. SDL, ibid., at para 11
    Professor Stephen Waddams, in “Judicial Discretion” (2001) 1 O.U.C.L.J. 59, at p. 59 (" the open-ended nature of a legal rule does not, in itself, present any particular reason to defer to a judge of first instance; on the contrary, the open-ended nature of a rule may be very good reason for the appellate court to give guidance and to settle uncertainties")

Topics

Misc Terminology

Interpretation
Definitions

673 In this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)],
...
"indictment" includes an information or charge in respect of which a person has been tried for an indictable offence under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)]; (acte d’accusation)
"registrar" means the registrar or clerk of the court of appeal; (registraire)
...
"trial court" means the court by which an accused was tried and includes a judge or a provincial court judge acting under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)]. (tribunal de première instance)
R.S., 1985, c. C-46, s. 673; R.S., 1985, c. 27 (1st Supp.), ss. 138, 203, c. 23 (4th Supp.), s. 4, c. 42 (4th Supp.), s. 4; 1992, c. 1, s. 58; 1993, c. 45, s. 10; 1995, c. 22, s. 5, c. 39, ss. 155, 190; 1996, c. 19, s. 74; 1999, c. 5, ss. 25, 51, c. 25, ss. 13, 31(Preamble); 2002, c. 13, s. 63; 2005, c. 22, ss. 38, 45; 2006, c. 14, s. 6; 2013, c. 11, s. 2.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 673

See Also