Summary Conviction Appeals and Extraordinary Remedies

• Author: Brian H Greenspan/Vincenzo Rondinelli/Jonathan Dawe/Maureen McGuire/Michael Dineen/Mark Halfyard
• Pages: 121-139

121

Summary

Conviction

Appeals and

Extraordinary

Remedies

10

I. Introduction.............................................. 122

II. Summary Conviction Appeals................................ 123

A. First-Level Appeals to the Summary Conviction

Appeal Court........................................ 123

B. Further Appeals to the Court of Appeal................... 128

C. Supreme Court of Canada Appeals...................... 130

III. Extraordinary Remedies and Appeals from Judicial Review

Decisions................................................ 130

A. Historical Origins.................................... 130

B. The Criminal Code Provisions.......................... 131

C. Scope and Remedy................................... 132

D. Appeals from Superior Court Decisions Granting or Refusing

Extraordinary Remedies ............................... 134

E. Examples of Applications for Extraordinary Remedies

in Criminal Cases .................................... 134

Copyright © 2025 Emond Montgomery Publications. All Rights Reserved.

122 Criminal Appeals

I. Introduction

As discussed in previous chapters, when criminal charges are prosecuted by indict-

ment, the losing party at trial can appeal pursuant to the provisions of part XXI of the

Criminal Code.1 Indictable appeals are always to the provincial or territorial court of

appeal, regardless of whether the trial took place in the provincial court or in the

superior court.

In contrast, when a criminal charge is prosecuted summarily,2 the trial must take

place in the provincial court or territorial court, and any ensuing “f‌irst-level” appeal

must be brought under the provisions of part XXVII of the Criminal Code to the

“appeal court” as def‌ined in sections 812 and 829,3 which in most jurisdictions is the

superior court.4 Once an appeal has been decided by the “summary conviction appeal

court”—for example, by a single superior court judge—further appeals may be

brought to the provincial or territorial court of appeal. However, these second-level

appeals are limited to grounds involving questions of law and require leave of the

court, which in most jurisdictions is granted only sparingly.

In addition to their powers to hear summary conviction appeals under part

XXVII, the superior courts also have inherent jurisdiction to review decisions

made by provincial court judges and justices via the traditional prerogative writs

of certiorari, habeas corpus, mandamus, procedendo, and prohibition. An application

to the superior court for one of these “extraordinary remedies” is not technically

an appeal but has a number of appeal-like characteristics. Access to the extra-

ordinary remedies in criminal matters has been partially codif‌ied by part XXVI of

the Criminal Code.

1 RSC 1985, c C-46.

2 That is, when the defendant is charged with a “straight summary” oence or when the Crown

has elected to proceed summarily on a hybrid charge.

3 Sections 675(1.1) and 676(1.1) create an exception to this general rule, providing that an appeal

in a summary conviction matter can sometimes be brought directly to the provincial or terri-

torial court of appeal if the summary conviction charge was “tried with an indictable oence”

and “there is an appeal in respect of the indictable oence.”

4 The Criminal Code has special rules for Nunavut’s unif‌ied court structure. For instance, s

813(1)(i) def‌ines the summary conviction “appeal court” in Nunavut to be a judge of the

Nunavut Court of Justice, but s 813(2) provides further that if the appeal is from a conviction,

order sentence, or verdict by a judge of that court the “appeal court” becomes a judge of the

Court of Appeal of Nunavut. The practical eect of these provisions is that appeals from deci-

sions of Nunavut justices of the peace are heard by judges of the Nunavut Court of Justice,

while appeals from decisions by judges of that Court must be heard by a single judge of the

territorial Court of Appeal.

Copyright © 2025 Emond Montgomery Publications. All Rights Reserved.