Sexual Offence Appeals

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 597-621

597

Sexual Oence

Appeals

18

I. Introduction.............................................. 

II. Launching an Appeal ...................................... 

III. Bail Pending Appeal ....................................... 

IV. Perfecting the Appeal ...................................... 

V. Common Grounds of Appeal in Sexual Oence Cases............ 

VI. Fresh Evidence............................................ 

VII. Appeals to the Supreme Court of Canada ...................... 

VIII. Complainant Rights of Appeal ............................... 

IX. Crown Appeals ........................................... 

This chapter was authored by Lindsay Board.

© 2024 Emond Montgomery Publications. All Rights Reserved.

598Prosecuting and Defending Sexual Oence Cases

I. Introduction

This chapter will review the practice and procedure for appealing a conviction and/

or sentence in sexual oence cases. The focus will be on defence appeals. Because

convicted oenders have an automatic right to appeal their conviction at first instance

in most cases, this right is routinely exercised given the significant jeopardy, personal

and professional consequences, and stigma associated with a conviction for a sexual

oence. Crown appeals, on the other hand, are less common and tend to be brought

in cases that are particularly meritorious and in the public interest.

Although by no means an exhaustive summary of the various issues and complexi-

ties of the appeal process, this chapter highlights some of the most common features

of a sexual oence appeal.

II. Launching an Appeal

After a trial is completed, the Crown or the accused can appeal either a conviction

or sentence imposed by the trial court. The first step is determining the appropriate

venue for the appeal, which is dictated by whether the Crown proceeded summarily

or by indictment.1

A. Indictable Appeals

Indictable appeals are governed by part XXI of the Criminal Code and the rules and

practice directions of the appeal court in each province or territory. When the Crown

prosecutes an oence by indictment, an appeal lies to the court of appeal for the

province or territory in which the trial was held, regardless of the level of court in

which the case was originally heard.2 The person initiating the appeal is referred

to as the “appellant,” and the opposing party is the “respondent” on the appeal.

Appellants can appeal against their conviction as of right on “any ground of appeal

that involves a question of law alone.”3 Where the convicted person is the appellant,

they require leave to appeal against a conviction if the ground of appeal involves a

question of fact or a question of mixed law and fact,4 although in practice, this leave

requirement is ignored and rarely mentioned. The Crown’s right of appeal is limited

to questions of law.5

1 Sections 683 to 689 (excepting ss 683(3) and 686(5)) of the Criminal Code, RSC 1985, c C-46,

regarding the powers of an appeal court, apply to both indictable and summary conviction

appeals: Criminal Code, s 822. In the rare case that a summary conviction oence is tried

together with an indictable oence, the court of appeal can hear the summary conviction

appeal together with the indictable appeal, with leave: Criminal Code, s 675(1.1).

2 Criminal Code, ss 2, 673.

3 Criminal Code, s 675(1)(a)(i).

4 Criminal Code, s 675(1)(a)(ii).

5 Criminal Code, s 676(1)(a).

© 2024 Emond Montgomery Publications. All Rights Reserved.