Appeals to the Supreme Court of Canada

• Author: Brian H Greenspan/Vincenzo Rondinelli/Jonathan Dawe/Maureen McGuire/Michael Dineen/Mark Halfyard
• Pages: 141-171

141

Appeals to the

Supreme Court

of Canada

11

I. Introduction.............................................. 142

II. The Court’s Jurisdiction in Criminal Matters.................... 142

A. Appeals as of Right .................................. 146

B. Appeals with Leave................................... 150

III. Supreme Court of Canada Procedure ......................... 151

A. Ottawa Agents ...................................... 151

B. The Leave Application ................................ 152

C. The Notice of Appeal ................................. 159

D. Appeals as of Right .................................. 160

E. The Appeal Process and Timeline ....................... 160

IV. Bail Pending a Leave Application or Appeal..................... 164

V. Interventions............................................. 165

VI. The Appeal Factum ........................................ 168

VII. The Hearing.............................................. 169

VIII. Powers of the Supreme Court of Canada on Appeal.............. 170

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142 Criminal Appeals

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 deci-

sions in certain exceptional situations (see Chapter 1, The Nature of an Appeal and

Statutory Jurisdiction), nearly all criminal cases that reach the Court do so in the form

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

Chapter 1, in most circumstances only the party who loses in the result in the court of

appeal can initiate a further appeal to the Supreme Court, although there are excep-

tions to this general rule in some constitutional cases. Third parties who are aected

by rulings in criminal cases can also sometimes appeal directly to the Supreme Court.

Most appellants must obtain leave to appeal 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 the Supreme Court “as of

right,” without f‌irst obtaining leave.

II. The Court’s Jurisdiction in Criminal Matters

Like 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 author-

ized to do so by legislation. The Court’s main sources of jurisdiction in indictable

criminal matters are found in part XXI of the Criminal Code. Sections 691 to 696

authorize the Court to hear appeals from decisions by the provincial and territorial

courts of appeal in indictable appeal matters other than sentence appeals (e.g., 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-MD] and f‌indings of unf‌itness to stand trial). The Criminal Code provisions

only give rights of appeal to the party who has lost in the result in the court of appeal,

who may have been either the appellant or the respondent in the original appeal.

These Criminal Code provisions are supplemented by section 40 of the Supreme

Court Act,2 which gives the Supreme Court jurisdiction to hear appeals “from any

f‌inal or other judgment” of “the highest court of f‌inal resort in a province … in which

judgment can 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

1 RSC 1985, c C-46.

2 RSC 1985, c S-26.

3 See e.g. R v Krymowski, 2005 SCC 7 with regard to summary conviction appeals; R v Gardiner,

[1982] 2 SCR 368, 1982 CanLII 30 with regard to sentence appeals.

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