Appeals

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 437-473

437

CHA PTER 12

APPEA LS

A. INTRODUC TION

Rights of appeal in the Canadian crim inal justice system are enti rely a

creature of statute. Various appeal provisions a re set out in the Criminal

Code, and in addition, the Code provides t hat only appeals authorized

in Parts XXI a nd XXVI can be brought with rega rd to indictable of-

fences.1 In fact, however, that has not operated to completely restrict

the methods of review for decisions of the lower courts.

First, applications for extraordinary remedies such as certiorari can

be brought in some cases, though the scope of such applications is more

limited than an appeal (see the discussion of this issue in Chapter 9).

In addition, in some unusual circumstances an appeal to the Supreme

Court might be possible through section 40 of the Supreme Court Act.2

That section permits appeals “from any f‌inal or other judgment of . . .

the highest court of f‌inal resort in a province,” provided that the issue

is important enough.3 In Dagenais v Canadian Broadcasting Corp., the

Court held that although a literal interpretation of section 674 of the

Code would exclude relying on section 40, such a literal interpretation

1 Section 674.

2 RSC 1985, c S-26.

3 The phrase use d in s 40 is that the quest ion is “by reason of its public import ance

or the importa nce of any issue of law or any issue of m ixed law and fact involved

in that quest ion, one that ought to be decided by the Supreme Cou rt or is, for any

other reason, of s uch a nature or signif‌icanc e as to warrant decision by it . . . .”

CRIMIN AL PROCEDURE438

could not be adopted.4 In that case, section 40 was used to allow a third

party (the media) to appeal a publication ban, an appeal that would not

have been possible under any of the Code’s appeal provisions. In R v

Cunningham the Court concluded that an appeal of a decision whether

to allow defence counsel to withdraw should also proceed under sec-

tion 40, on the basis that defence counsel (like the media in Dagenais)

is a third party to the main criminal action.5 See also R v Laba, where

section 40 permitted the Crown to appeal a ruling that overturned a re-

verse onus provision in the Code, even though they had been successful

in the result at the court of appeal: in effect, the Crown was appealing a

case that it had won.6 In R v Shea the Court concluded that section 40

permitted appeals of a provincial court of appeal’s decision to extend

the application for an appeal, though they also observed that it was

only in very rare circumstances that such a decision could be important

enough to warrant granting leave.7

The provision is sometimes used in c ases where an appeal of an

interlocutory order is in issue, such as when a th ird party challenges an

order for production of privileged communications, as in R v McClure8

or R v Brown.9 In the latter case, the Court noted that such appeals

reach it without having been considered by any court of appeal, which

denies the Court the benef‌it of a ful ler record and input from that lower

court. They suggested that this gap in the Code’s appeal prov isions was

anomalous and an “unnecessary encumbrance” that should be f‌ixed by

Parliament .10

The focus of this chapter, however, will be on the statutory appeal

powers set out in the Code itself. Although some issues, such as time

limits and procedures, are s et by rules of court,11 for the most part, the

Code determi nes what can and cannot be done.

The Code creates separate sets of rules for appeals of indictable of-

fences and of summary conviction offences. However, as a matter of con-

venience it does permit the appeal of a summary conviction matter to

be heard along with that of an indictable offence where the two offences

were tried together.12 In the case of indictable offences, different appeal

4 [1994] 3 SCR 835 [Dagenais].

5 2010 SCC 10 [Cunningh am].

6 [1994] 3 SCR 965.

7 2010 SCC 26.

8 2001 SCC 14.

9 2002 SCC 32 [Brown].

10 Ibid at pa ra 110.

11 S ection 678.

12 Sect ions 675(1.1) and 676(1.1).

Appeals 439

rights are given to an accused and the Crown. For summary conviction

offences, however, the appeal rights are essentially parallel. The Code

provisions deal with appeals of the result in the trial, f‌indings that a per-

son is not criminally responsible or is not f‌it to stand trial, and appeals of

sentence. It is the f‌irst of these that is of primary interest in this chapter.

B. A PPEALS OF INDICTABLE OFFENCES

1) Appeals by the Accused

a) Overview of Appeal Provisions

At f‌irst glance, it would appear that an accused appealing a conviction

has an enormously broad right of appeal. Section 675(1)(a) says that a

person can appeal a conviction based on a question of law alone, on a

question of fact, on a question of mixed law and fact, or on any ground

of appeal “that appears to the court of appeal to be a suff‌icient ground

of ap pe al.” 13 In fact, the likelihood of an appeal succeeding is not near-

ly as great as that section alone suggests. These bases for appeal pa ss

through at least three “f‌ilters,” each limiting the grounds upon which

an appeal might succeed.

The f‌irst two f‌ilters are found in section 686(1)(a) of the Code. Sec-

tion 675 sets out the bases upon which an appeal can be made; the

grounds upon which an appeal can b e grant ed are considerably nar-

rower. Section 686(1)(a) sets out those grounds:

(i) the verdict should be set aside on the ground that it is unr eason-

able or cannot be supported by t he evidence,

(ii) the judgment of the tr ial court should be set aside on the ground

of a wrong decision on a question of la w, or

(iii) on any ground there was a mis carriage of justice.

13 Section 675(1)(a). Questions of law ca n be appealed as of right, whi le the other

grounds requi re leave of the court of appeal. Que stions of fact or mixed law and

fact can als o be appealed “on the certif‌icat e of the trial judge that the c ase is a

proper case for appe al.” The “suff‌icient ground” ba sis of appeal is meant as a

kind of residua l ground, to allow appeals t hat should be permitted but do not

f‌it neatly into the ot her grounds. For example, an applicat ion to an appeal court

to withdraw a g uilty plea based on incompet ent representation at tria l would be

brought under this g round: see, for example, R v Short, 2012 SKCA 85.