Appeals

• Author: Steve Coughlan
• Pages: 392-423

392

CHAPTER 12

APPEALS

A. INTRODUCTION

Rights of appeal in the Canadian criminal justice system are entirely a

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

Code, and in addition the Code provides that only appeals author ized in

Parts XXI and X XVI can be brought with regard to indictable offences.1

In fact, however, that has not operated to completely restrict the meth-

ods of review for decisions of the lower courts.

First, applications for extraordin ary 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

1 Section 674.

2 R.S.C. 1985, c. S-26.

3 The phrase used i n s. 40 is that the question i s “by reason of its public impor-

tance or the imp ortance of any issue of law or any i ssue of mixed law and fact

involved in that que stion, one that ought to be decided by the Supr eme Court or

is, for any other rea son, of such a nature or signif‌ic ance as to warrant decis ion

by it . . . .”

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

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

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

have been possible under any of the Code’sappeal 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 t he Crown to appeal a rul ing 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 e ffect, 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 import-

ant enough to warrant granting leave.7

The provision is sometimes used in cases 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. McClure

or R. v.Brown.8 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 fuller record, and input from that

lower court. They suggested that this gap in the Code’s appeal provi-

sions was anomalous and an “unnecessary encumbrance” that should

be f‌ixed by Parliament.9

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

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

as time limits and procedures, are set by rules of court,10 for the most

part the Code determines 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

convenience it does permit the appeal of a summary conviction matter

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

fences were tried together.11 In the case of indictable offences, different

4Dagenais v. Canadian Broad casting Corp., [1994] 3 S.C.R. 835.

5R. v. Cunningham, 2010 SCC 10.

6R. v. Laba, [1994] 3 S.C.R. 965.

7R. v. Shea, 2010 SCC 26.

8R. v. McClure, 2001 SCC 14; R. v. Brown, 2002 SCC 32 [Brown].

9 Brown, ibid. at para. 110.

10Section 678.

11Sections 675(1.1) and 676(1.1).

CRIMINAL PROCEDURE

394

appeal 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, as well

as f‌indings that a person is not criminally responsible or is not f‌it to

stand trial, as well as appeals of sentence. It is the f‌irst of these that is

of primary interest in this chapter.

B. APPEALS 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, (with

leave of the court of appeal) on a question of fact, on a mixed question

of law and fact, or on any ground of appeal “that appears to the court

of appeal to be a suff‌icient ground of appeal.”12 In fact, the right is

not nearly as expansive as that section alone suggests. These bases for

appeal pass 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). Section 675 sets

out the bases upon which an appeal can be made; the grounds upon

which an appeal can be g ranted are considerably narrower. Section

686(1)(a) sets out those grounds:

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

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 law, or

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

It is important to note the differences between the scope of this provi-

sion and section 675.

Appeals can be made under section 675 on the basis of an error

relating to a question of fact or mixed fact and law. However, appeals

will not necessarily be granted under section 686(1) simply because

such an error is shown. Rather, only such an error that results in an

12Section 675(1)(a). Questions of f act or mixed law and fact can al so be appealed

“on the certif‌icat e of the trial judge that the c ase is a proper case for appea l.”