Rights of appeal in the Canadian criminal justice system are entirely a creature of statute. Various appeal provisions are set out in the Criminal Code, and in addition the Code provides that only appeals authorized in Parts XXI and XXVI can be brought with regard to indictable offences.1
In fact, however, that has not operated to completely restrict the methods of review for decisions of the lower courts.
First, applications for extraordinary 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
Code would exclude relying on section 40, such a literal interpretation could not be adopted.4In that case, section 40 was used to allow a third party (the media) to appeal a publication ban, an appeal that would not have been possible under any of the Code’s appeal 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 section 40, on the basis that defence counsel (like the media in Dagenais) is a third party to the main criminal action.5See also 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 the result at the court of appeal: in effect, the Crown was appealing a case that it had won.6In 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 important 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 third party challenges an order for production of privileged communications, as in R. v. MCCLURE or R. v. Brown.8In the latter case, the Court noted that such appeals reach it without having been...