Appeals to the Supreme Court of Canada

• Author: Mark C. Halfyard/Michael Dineen/Jonathan Dawe
• Pages: 125-149

125

Appeals to the

Supreme Court

of Canada

11

I. Introduction ............................................. 126

II. The Court’s Jurisdiction in Criminal Matters ................... 126

A. Appeals as of Right .................................. 128

B. Appeals with Leave .................................. 130

III. Supreme Court of Canada Procedure ......................... 132

A. Ottawa Agents ...................................... 132

B. The Leave Application ................................ 132

C. The Notice of Appeal ................................ 138

D. Appeals as of Right .................................. 139

E. The Appeal Process and Timeline ...................... 139

IV. Bail Pending a Leave Application or Appeal .................... 143

V. Interventions ............................................ 144

VI. The Appeal Factum ....................................... 146

VII. The Hearing ............................................. 147

VIII. Powers of the Supreme Court of Canada on Appeal ............. 149

126 Criminal Appeals: A Practitioner’s Handbook

I. Introduction

The Supreme Court of Canada sits as the highest court of appeal in both civil and

criminal cases. Although it can hear appeals directly from criminal trial court decisions

in certain exceptional situations (see Chapter 1, The Nature of a Criminal Appeal and

Statutory Jurisdiction), the vast majority of criminal cases that reach the court do so

in the form of appeals from decisions by a provincial or territorial court of appeal. As

loses in the result in

the court of appeal can initiate a further appeal to the Supreme Court, although there

are exceptions to this general rule in some constitutional cases. Most appellants must

obtain leave to appeal from a panel of three Supreme Court judges before their appeal

is allowed to proceed further and be decided on the merits. However, as discussed

below, the Criminal Code1 allows some appeals in indictable matters to be brought to



II. The Court’s Jurisdiction in Criminal Matters

As with the provincial and territorial courts of appeal, the Supreme Court of Canada

is a court of statutory jurisdiction that can only hear and decide appeals when it is

authorized to do so by legislation. The court’s main sources of jurisdiction in indictable

Criminal Code. Sections 691 to 696 au-

thorize the court to hear appeals from decisions by the provincial and territorial courts

of appeal in indictable appeal matters other than sentence appeals (for example, con-

viction appeals, Crown appeals against acquittals or stays of proceedings, and appeals

against verdicts of “not criminally responsible on account of mental disorder” [NCR-



appeal to the party who has lost in the result in the court of appeal, and who may have

been either the appellant or the respondent in the original appeal.

These Code provisions are supplemented by section 40 of the Supreme Court Act,2

 



be had in the particular case sought to be appealed.” The court has interpreted section

40 broadly and held that it applies whenever no other statutory right of appeal exists,

including in criminal matters where no right of appeal to the court is provided by the

Criminal Code, such as in sentence appeals and appeals in summary conviction matters.3

The court has also found that section 40 gives it jurisdiction to hear appeals concerning

1 Criminal Code, RSC 1985, c C-46.

2 Supreme Court Act, RSC 1985, c S-26.

3 See e.g. R v Krymowski, 2005 SCC 7, [2005] 1 SCR 101 with regard to summary conviction

appeals; R v Gardiner, [1982] 2 SCR 368 with regard to sentence appeals.