Appeal Procedure

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

Powers of appeal court
834 (1) When a notice of appeal is filed pursuant to section 830, the appeal court shall hear and determine the grounds of appeal and may

(a) affirm, reverse or modify the conviction, judgment, verdict or other final order or determination, or
(b) remit the matter to the summary conviction court with the opinion of the appeal court,

and may make any other order in relation to the matter or with respect to costs that it considers proper.
Authority of judge
(2) Where the authority and jurisdiction of the appeal court may be exercised by a judge of that court, the authority and jurisdiction may, subject to any applicable rules of court, be exercised by a judge of the court sitting in chambers as well in vacation as in term time.
R.S., 1985, c. C-46, s. 834; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.


Leave to Appeal

The process of requesting "leave" from a reviewing court is "a form of gatekeeping ... to identify those judgments or orders that are of sufficient importance to warrant a further level of review".[1]

In practice, sometimes leave is granted "at large" while other times the leave is only "granted on a defined issue".[2]

The decision to grant leave does not require to give an explanation on the question for which leave was granted.[3]

In answering a question for which leave was granted. The reviewing court is not required to only answer the question and may expand its reasons beyond the question.[4] However, the factums should not go beyond the question asked without leave of the Court.[5]

  1. R v Johannesson, 2017 ABCA 33 (CanLII), per Slatter JA, at para 3
  2. Johannesson, ibid. at para 3
  3. Johannesson, ibid. at para 4
  4. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC) at para 12
    Johannesson, supra at para 4
  5. Johannesson, supra at para 6

Notice of Appeal

Section 678 provides a requirement that anyone filing an appeal must provide notice:

Notice of appeal
678. (1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court.
Extension of time
(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
R.S., c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s. 16.


Provincial rules of court set out the notice requirements for each appealing party as well as the time limit.[1]

Respondent Cannot Be Found

Service where respondent cannot be found
678.1 Where a respondent cannot be found after reasonable efforts have been made to serve the respondent with a notice of appeal or notice of an application for leave to appeal, service of the notice of appeal or the notice of the application for leave to appeal may be effected substitutionally in the manner and within the period directed by a judge of the court of appeal.
R.S., 1985, c. 27 (1st Supp.), s. 140; 1992, c. 1, s. 60(F).


Rules may permit substituted service on notice, but when they do, they require a high standard of proof.[2]

  1. E.g.
    NS: Rule 91.04 Civil Procedure Rules
  2. e.g. see R v Goodhart, 2012 ABQB 712 (CanLII) - substituted notice to accused quashed

Late Notice

Section 678(2) provides that where late notice is given:

Extension of time
(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
R.S., c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s. 16.


An extension of time for filing and service of notice of appeal typically consideration of: [1]

(a) Whether the applicant showed a bona fide intention to appeal within the appeal period;
(b) Whether the applicant has acted with reasonable diligence or has reasonable excuse for delay; and
(c) Whether there is merit to the proposed appeal.

The principle of "finality" recognizes that due process has temporal limits and can be extinguished in time.[2]

The factor of merit to the appeal is not a "difficult threshold". It only requires that the appellant show a "realistic grounds which, if established, appear of sufficient substance to be capable of convincing a panel of the court to allow the appeal".[3] In New Brunswick, it must "demonstrate a serious chance of success".[4] While in Saskatchewan, it must have a "reasonably arguable ground"[5]

In determining if there is an "arguable issue", the issue should be "reasonably specific". The chambers judge should not consider "evidence nor arguments relevant to the outcome".[6]

Open-Ended List
The factors are not a fixed list.[7] Other suggested factors include:[8]

  1. whether the consequences of conviction were out of proportion to the penalty imposed;
  2. whether the Crown will be prejudiced; and
  3. whether the applicant has “taken the benefit of the judgment:”

The judge has no jurisdiction to correct service retroactively.[9]

If "service of the notice of appeal is out of time and thereafter an order is made extending the time for service, the notice of appeal must be re-served within the extended time".[10]

  1. R v Donaldson,2005 SKQB 479 (CanLII)
    R v Menear, 2002 CanLII 7570 (ON CA), [2002] O.J. No. 244. At para 20
    R v Spencer, 2015 NSCA 99 (CanLII)
    R v REM, 2011 NSCA 8 (CanLII)
  2. R v Letiec, 2015 ABCA 123 (CanLII) at para 7
    R v Canto, 2015 ABCA 306 (CanLII) at para 10
  3. Spencer at paras 12 to 13
  4. R v Stapleton (2000) 225 NBR (2d) 260
  5. R v Brittain, 2008 SKCA 104 (CanLII)
  6. Coughlan v Westminer, 1993 CanLII 3254 (NSCA) at para 11
  7. Donald at para 18
    Menear at para 20
    Blin v Boudreau, 2015 NSCA 78 (CanLII) at para 6 - re civil appeal extension, using same test
  8. Donald at para 18
  9. R v Bouchard, 2012 ONSC 7174 (CanLII), at para 10
    R v Holmes, 1982 CanLII 1977 (ON CA) c.f. R v Vinet, 2011 BCSC 1928 (CanLII)
  10. R v Holmes

Issues of Appeal

It is inappropriate for the appellate court to raise any issues not raised by either Crown or Defence.[1] This is not a hard and fast rule, however. It has been suggested that judges have "a duty to review the complete trial record and ensure that all relevant issues were argued."[2]

Appellate courts have the discretion to raise new issues not raised by either party where it is in the interests of justice to do so. The discretion must be exercised with caution.[3]

The accused may only raise a Charter issue on appeal that was not raised at trial where the following has been met: [4]

  1. there must be a sufficient evidentiary record to resolve the issue.
  2. it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial.
  3. the court must be satisfied that no miscarriage of justice will result from the refusal to raise such new issue on appeal.
  1. R v T. (S.G.) 2010 SCC 20 (CanLII) at paras 36-7
  2. Royal Commission on the Donald Marshall, Jr., Prosecution at p. 22
  3. R v Mian, 2014 SCC 54 (CanLII)
  4. R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918, [1993] S.C.J. No. 82 per L'Heureux-Dubé J. at para 20 dissenting on other grounds

Issues Not Raised at Trial

There is a general prohibition to new arguments on appeal. This is in order to protect the "overarching societal interest in the finality of litigation in criminal matters".[1] Without such a limitation finality would be an "illusion" and there would be no limits on issues to raised which would undermine respect for the administration of justice.[2]

Generally speaking, appellate courts should be particular cautious or resistant to consider new issues raised only on appeals.[3] The appellate courts are disadvantaged by the lack of any prior consideration by lower courts.[4]

In order to raise a Charter issue on appeal where it was no argued previously, there must be 1) sufficient evidence to deal with the issue, 2) satisfied that the failure to raise the issue previously was not merely a tactical issue, 3) there is no miscarriage of justice from raising the new issue.[5]

Crown counsel are generally not permitted to raise issues that were not advanced at trial.[6]

In certain cases, such as applications for privileged information, the failure to raise the issue at trial subsequent to a lost voir dire has been found to be fatal to a potential appeal.[7]

In Alberta, the applicant can advance a Charter issue on appeal not raised at trial where:[8]

  1. [T]he Charter issue must not be an issue which the defence could have raised at trial and chose not to, and
  2. The necessary evidence to rule on the Charter issue must be before the court.

Raised by Court
Nevertheless, appellate courts have "jurisdiction to invite submissions on an issue neither party has raised".[9]

A "new issue" arises when "the issue was not raised by the parties, cannot reasonably be sad it stem from the issues as framed by the parties, and therefore would require that the parties be given notice of the issue in order to make informed submissions."[10]

  1. R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918 at pp. 923-924 per L’Heureux-Dubé J dissenting
    R v Warsing, 1998 CanLII 775 (SCC), [1998] 3 SCR 579, at para 16, per L’Heureux-Dubé J dissenting in part
    Kaiman v Graham, 2009 ONCA 77 (CanLII), at paras 18-19
    R v Roach, 2009 ONCA 156 (CanLII), at para 6
    R v Reid, 2016 ONCA 524 (CanLII) at paras 38 to 39 per Watt JA
  2. Brown, supra
  3. e.g. R v Potvin, 1993 CanLII 113 (SCC), [1993] 2 SCR 880, at p 916
    Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 (CanLII), [2002] 2 SCR 559 at paras 58-59
    R v Tse, 2012 SCC 16 (CanLII), [2012] 1 SCR 531 at para 57
  4. Giguere v Chambre des notaires du Quebec, 2004 SCC 1 (CanLII), [2004] 1 SCR 3 at para 34
  5. R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918 at para 20
    R v Black, 2010 NBCA 36 (CanLII) at para 3, per Bell JA
  6. R v Varga, 1994 CanLII 8727 (ON CA), [1994] O.J. No. 1111 (C.A.) at paras 25, 26, 38 and 40
  7. R v Blair, 2000 CanLII 16821 (ONCA)
  8. R v Fertel [1993] A.J. No. 767 at para 21 citing R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918
    see also R v Jacobs, 2014 ABCA 172 (CanLII)
  9. R v Mian, 2014 SCC 54 (CanLII) at para 28 per Rothstein J
  10. Mian, ibid. at para 35


See also: Role of the Victim and Third Parties#Itervenors

A party may apply to intervene in an appeal where: [1]

  1. whether the intervention will unduly delay the proceedings;
  2. possible prejudice to the parties if intervention is granted;
  3. whether the intervention will widen the lis between the parties;
  4. the extent to which the position of the intervenor is already represented and protected by one of the parties; and
  5. whether the intervention will transform the court into a political arena.

These factors are balanced against each other and the interests of convenience, efficiency, and social purpose of moving the matter forward. The decision is ultimately a discretionary one.

  1. R v Ross, 2012 NSCA 8 (CanLII) at para 12 John Sopinka & Mark A. Gelowitz in The Conduct of an Appeal, 2nd ed. (Canada: Butterworths, 2000) at pp. 258-59
    R v Fraser, 2010 NSCA 106 (CanLII), at para 12

See Also