The Nature of an Appeal and Statutory Jurisdiction

• Author: Brian H Greenspan/Vincenzo Rondinelli/Jonathan Dawe/Maureen McGuire/Michael Dineen/Mark Halfyard
• Pages: 1-21

1

The Nature of

an Appeal and

Statutory

Jurisdiction

1

I. The Nature of a Criminal Appeal ........................... 2

A. Rights of Appeal Must Be Provided by Statute . . . . . . . . . . . . 2

B. The Policy Against Interlocutory Appeals in Criminal Cases ... 4

C. Appeals Are Against Orders, Not Reasons ............... 5

II. Statutory Rights of Appeal ................................ 7

A. Indictable Appeals ................................. 7

B. Summary Conviction Appeals ......................... 11

C. Supreme Court of Canada Appeals .................... 14

III. Third-Party Appeal Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. Direct Appeals to the Supreme Court of Canada .......... 18

B. Statutory Privilege Appeals Under the Canada Evidence Act ... 19

C. Third-Party Appeal Rights Initiated by Applications

forExtraordinaryRemedies .......................... 20

Copyright © 2025 Emond Montgomery Publications. All Rights Reserved.

2 Criminal Appeals

I. The Nature of a Criminal Appeal

A. Rights of Appeal Must Be Provided by Statute

The general principle in Canadian law—both criminal and civil—is that rights of

appeal must be specif‌ically created by statute. As LaForestJ explained in his concur-

ring reasons in Kourtessis v MNR:1

Appeals are solely creatures of statute; see R. v. Meltzer, [1989] 1 S.C.R. 1764, at p.1773.

There is no inherent jurisdiction in any appeal court. Nowadays, however, this basic

proposition tends at times to be forgotten. Appeals to appellate courts and to the Su-

preme Court of Canada have become so established and routine that there is a wide-

spread expectation that there must be some way to appeal the decision of a court of f‌irst

instance. But it remains true that there is no right of appeal on any matter unless pro-

vided for by the relevant legislature.2

A further restriction in criminal cases is that only the federal Parliament has

constitutional authority to create rights of appeal in matters with an “exclusively

criminal” character.3 In Knox Contracting Ltd v Canada,4 SopinkaJ (dissenting, but

not on this point) explained:

Provincial law of procedure is inapplicable only in respect of proceedings that are exclu-

sively criminal in nature. By virtue of section91(27) of the Constitution Act, 1867, Parlia-

ment is given exclusive legislative power over criminal law and procedure. Matters

arising out of a statute enacted exclusively under the criminal law power must be dealt

with under federal laws, including laws of procedure.5

Accordingly, in a “true criminal matter”—for example, a prosecution for a Criminal

Code6 oence—all rights of appeal must be found in federal legislation, which in prac-

tical terms means the Criminal Code and the Supreme Court Act.7

The situation is potentially more complicated and unsettled in cases involving

federal oences that are not “exclusively criminal” because they are created by legis-

lation that also falls under both the federal power to enact criminal law and some

other head of federal constitutional authority, such as the Constitution Act, 1867,

1 [1993] 2 SCR 53, 1993 CanLII 137.

2 Ibid at 69-70, LaForestJ.

3 That is, matters that fall within federal legislative jurisdiction solely as a result of s91(27) of the

Constitution Act, 1867 (UK), 30 & 31 Vict, c3, reprinted in RSC 1985, AppendixII, No5, which

gives the Parliament of Canada legislative authority over “the Criminal Law… including the

Procedure in Criminal Matters.”

4 [1990] 2 SCR 338, 1990 CanL II 71.

5 Ibid at 362. See also In re Storgo, [1945] SCR 526, 1945 CanLII 17; Poje v Attorney General for British

Columbia, [1953] 1 SCR 516 , 1953 CanLII 34; R v Meltzer, [1989] 1 SCR 1764, 1989 CanLII 68.

6 RSC 1985, c C-46.

7 RSC 1985, c S-26.

Copyright © 2025 Emond Montgomery Publications. All Rights Reserved.