Appeals

• Author: Steve Coughlan
• Pages: 561-605

561

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 Crim -

inal Cod e, and in addition, the Code provides that only appeal s author-

ized in Parts X XI and XXVI can be brought with regard to indictable

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

the methods of review for decisions of the lower courts.

First, applications for extraordina ry remedies such as certiorari can

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

limited than an appeal. The procedures for extraordinar y remedies are

set out in Part XXVI, and those include provisions for appeals of a

decision regarding an application for an extraordinary remedy. Those

appeal procedures are separately recognized by section 674 of the Code,

and therefore the limits which are s et out below relating to appeals

from convictions or acquittals do not apply. In particular, if Part XX VI

proceedings are commenced relating to a search warrant but charges

are subsequently laid based on the evidence obtained through the

warrant, the proceedings already commenced do not thereby become

1 Section 674. This means th at, for example, a judge whose decision is over turned

has no abilit y personally to appeal t he order arising out of the appeal (Al berta

(Attorney Ge neral) v Malin, 2016 ABCA 396) and is not a par ty to any appeal

that is launc hed (R v Penunsi, 2016 NLCA 50).

CRIMIN AL PROCEDURE

562

interlocutory to the prosecution; that is, they are not governed by the

appeal provisions relati ng to acquittals or convictions.2

In addition, in some unusual circum stances an appeal to the

Supreme Court might be possible through section 40 of the Supreme

Court Act.3 That section permits appeal s “from any final or other judg-

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

the issue is import ant enough.4 In Dagenais v Canadian Broadcasting

Corp, the Court held th at although a literal interpretation of section 674

of the Code would exclude relying on section 40, such a literal inter-

pretation could not be adopted.5 In that case, section 40 was used to

allow a third part y (the media) to appeal a publication ban, an appeal

that would not have been possible under any of the Code ’s appeal prov i-

sions. In R v Cunningham the Court concluded that an appeal of a deci-

sion whether to allow defence counsel to withdraw should also proceed

under section 40, on the basis th at defence counsel (like the media

in Dagenais) is a thi rd party to the main criminal action.6 See al so R

v Laba, where section 40 permitted the Crown to appeal a ruling that

overturned a reverse onus provision in the Code, even though they had

been successful in t he result at the court of appeal: in effect, the Crown

was appealing a ca se that it had won.7 In R v Shea the Court concluded

that section 40 perm itted appeals of a provincial court of appeal’s deci-

sion to extend the application for an appeal, though they also observed

that it was only in very ra re circumstances that such a decision could

be important enough to warra nt granting leave.8

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

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

for production of privileged communications, as in R v McClure9 or R v

Brown.10 In the latter case, the Court noted that such appeals reach it

without having been considered b y any court of appeal, which denies the

2 R v Douglas, 2016 MBCA 81. With regard to the avai lability of certiorari in crim-

inal proceed ings generally, see R v Awashish, 2018 SCC 45.

3 RSC 1985, c S-26.

4 The phrase used i n section 40 is that the que stion is “by reason of its public

importance or t he importance of any issue of l aw or any issue of mixed law

and fact involved in t hat question, one that ought to be decided b y the Supreme

Court or is, for any other r eason, of such a nature or signi ficance as to warra nt

decision by it.”

5 [1994] 3 SCR 835 [Dagenais].

6 2010 SCC 10.

7 [1994] 3 SCR 965.

8 2010 SCC 26.

9 2001 SCC 14.

10 2002 SCC 32.

Appeals 563

Court the benefit of a fuller record and input from that lower court. They

suggested that this gap in the Code’s appe al provisions was anomalous

and an “unnecessa ry encumbrance” that should be fixed by Parliament.11

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

powers set out in the Code itself relating to convictions and acquittals.

Although some issues, such as time limits and procedures, are set by

rules of court,12 for the most part, the Cod e determines what can and

cannot be done. Although in principle the rules in the Code gover n

“live” disputes between parties, a court of appeal does have the discre-

tion to hear a matter even if it is moot, if the underly ing issue continues

to have importance. Specif ically, the Court has held that a court should

pay attention to a number of factors, the weight of which will var y

according to the circumst ances. Those factors include:

1. whether t he appeal wi ll proceed in a proper adversarial context ;

2. the st rength of the grounds of the appeal;

3. whether there are spec ial circumstance s that transcend t he death

of the individua l appellant/re spondent, including:

(a) a legal issue of general public i mportance, particularly i f it is

otherwi se evasive of appellate revie w;

(b) a systemic is sue related to the admin istration of justice;

(c) collateral consequences to t he family of the decea sed or to

other interested per sons or to the public;

4. whether the nature of the order which could be made by t he

appellate court just ifies the expe nditure of limited judici al (or

court) resources to res olve a moot appeal;

5. whet her continuing the appeal would go be yond the judicial

function of resolvi ng concrete disputes and involve the court i n

free-standi ng, legislative-typ e pronouncements more properly

left to the legislat ure itself.13

The Code creates separate sets of rules for appeals of ind ictable

offences and of summary conviction offences. However, as a matter of

convenience it does permit the appeal of a summ ary conviction mat-

ter to be heard along with th at of an indictable offence where the two

offences were tried together.14 In the case of indictable offences, dif fer-

ent appeal rights are given to an accused and the Crown. For summar y

11 Ibid at para 110.

12 See s 678, requiring an appe llant to comply with rules of cou rt and authorizing

appeal court s to extend the time for appeal s. See, for example, R v Ansari, 2015

ONC A 891.

13 R v Smith, 2004 SCC 14 at para 50. See also R v Poulin, 2019 SCC 47.

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