B. Appeals of Indictable Offences

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University

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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."12In 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 granted are considerably narrower. Section 686(1)(a) sets out those grounds:

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial 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 miscarriage of justice.

It is important to note the differences between the scope of this provision 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

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unreasonable verdict or a miscarriage of justice will be sufficient. That is the first filter.

The second filter relates to the primary remaining ground of appeal in section 675, appeals based on a question of law. At face value, section 686(1)(a)(ii) says that demonstrating a wrong decision on such a question will lead to a successful appeal. However, there is some ambiguity in the meaning of the phrase "question of law." In essence, it has a broader meaning in the context of section 675 than it does in the context of s. 686(1)(a). As a result, the conclusion that an issue is a question of law for the jurisdictional purpose of deciding whether a ground of appeal exists does not necessarily mean that it is a question of law for the purpose of deciding whether the appeal should be granted.13In that latter context, it may be treated as a question of mixed law and fact. This change in characterization may cause the first filter to be relevant. In addition, since the latter question will involve greater deference to the trial judge (see the discussion of standard of review, below at Section B(1)(b)(i)), it further acts to limit the possibility of a successful appeal.14

The third filter is found in the fact that even if an appeal meets the conditions of section 686(1)(a), it might not be granted nonetheless. The grounds upon which an appeal might succeed are narrowed even further by section 686(1)(b), which sets out the grounds upon which the court of appeal can dismiss an appeal. Most obviously, a court can dismiss an appeal if none of the above grounds for granting it are made out. However, that is not the only basis for dismissing an appeal. That is, even if the accused does succeed in showing that one of the grounds of appeal in section 686(1)(a) is made out, the appeal might fail nonetheless.

A further basis for dismissing an appeal is that, although there was an error, the accused "was properly convicted on another count or part of the indictment."15In addition, section 686(b) contains two other bases upon which an appeal might be dismissed despite an error:

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(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

The former of these two is often referred to as the "curative proviso." The effect of it, along with section 686(1)(b)(iv), is that not all errors of law will lead to a successful appeal either. Errors in law that cause no substantial wrong, do not create a miscarriage of justice, or are mere procedural irregularities will not lead to a successful appeal by the accused.

These last two provisions are discussed in greater detail below at Sections B(1)(b)(iv) and (v). For the moment, it is sufficient to note that only an error of law under section 686(1)(a)(ii) could be saved by the curative proviso in 686(1)(b)(ii). If the appeal was based on either an unreasonable verdict or a miscarriage of justice then the harmless error exception has no application. It has been suggested that the underlying theory of this section is that appeals are fundamentally concerned with miscarriages of justice. Sections 686(1)(a)(i) and (iii) (unreasonable verdicts and other miscarriages of justice) necessarily fall into that category, and errors of law are presumed to fall into it unless the Crown shows otherwise.16

One other point of difference arises depending on the basis upon which an appeal is granted or dismissed. If an appeal is granted under section 686(1)(a), then the court of appeal quashes the conviction and can either acquit the accused or order a new trial. If, on the other hand, the appeal is dismissed on the basis that the accused was properly convicted on some part, then the appeal court can substitute a verdict, affirm the sentence, impose a new sentence, or remit the matter back to the trial court for sentencing.17A court of appeal has no more ability to find that an accused is factually innocent than a trial court does, though they are able to express the reasons for acquittal "in clear and strong terms."18Finally, note that appeal courts can deal with issues other than whether the accused was convicted or acquitted. Section 686 also gives the appeal court the ability to hear appeals relating to findings that

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an accused was unfit to stand trial, that an accused was not criminally responsible by reason of mental disorder, or with regard to special verdicts.19In addition, of course, a court of appeal can vary a sentence imposed on an accused.20

b) Appeal Provisions in Depth

i) Standard of Review

Since the grounds for an appeal by an accused extend beyond errors of law to include unreasonable verdicts and miscarriages of justice, appeal courts must review a variety of findings from lower courts. Specifically, it can be necessary to review questions of law, questions of fact, inferences of fact, and questions of mixed fact and law. The Supreme Court considered the standard of review for each of these issues in Housen v. Nikolaisen.21With regard to pure questions of law, the standard of review is correctness, and so an appellate court can substitute its opinion for that of the trial judge. Questions of fact, however, are only reviewable on a higher standard. A finding of fact should not be overturned in the absence of a "palpable and overriding error," which amounts to "prohibiting an appellate court from reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied to reach that conclusion."22The Court has offered three basic rationales for this approach. First, given the number, length, and cost of appeals, there should be limits on how readily available they should be-deferring to a trial judge’s findings of fact helps to impose a limit and does so on a principled basis. Second, trial judges are presumed to be competent and able to decide cases justly and fairly-allowing regular appeals would undermine that presumption as well as public confidence in the trial process. Finally, trial judges are better situated to make factual findings because they hear the testimony being given, are exposed to all the evidence, and are familiar with the case as a whole. Their primary role is to weigh and assess evidence, and so their expertise should be respected.

For essentially the same reasons, inferences of fact are held to the same standard of review as findings of fact. The issue is not whether

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there is evidence that reasonably supports the inference, but rather whether some palpable and overriding error can be shown from drawing the inference.

Questions of mixed law and fact are, in some ways, the most complicated. The Court has noted that these issues fall on a spectrum. Some things that may, at first, appear to be a question of mixed fact and law may actually be reduced to a question of law, in which case the correctness standard would apply. However, in other cases the higher standard of review is required, and so the general rule is that where an issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should only be overturned in the case of palpable and overriding error.

ii) Unreasonable Verdicts

The basic standard for assessing whether a verdict is unreasonable is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered."23This test entails both subjective and objective elements, and the Supreme Court has been reluctant to label it as one or the other. It does require the court of appeal to engage in some weighing of the evidence, and not simply to consider the question of the sufficiency of the evidence.24However, the court of appeal cannot merely substitute its view for that of...

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