Appeal Procedure

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General Principles

See also: Appeal Procedure For Summary Convictions and Appeal Procedure For Indictable Convictions

Summary Conviction Court vs Court of Appeal

Summary conviction appeals are to be taken according to Part XXVII of the Code, and be heard by a judge of the Superior Court of the province.[1] Under s. 822, the Summary Conviction Appeal Court is to follow the same rules as the Court of Appeal as set out in s. 683 to 689 when dealing with an appeal from s. 813. The main difference is that under s. 822(4), the SCAC may order a trial de novo where the applicant can show that there was a "denial of natural justice" or "substantial deficiency in the trial transcript".[2]

  1. R v PRF, 2001 CanLII 21168 (ON CA), (2001), 57 O.R. (3d) 475 (C.A.) at para 5
    s. 812(1) designates superior court judges from each province
  2. Exception exists for s. 683(3) and s. 686(5)
    R v Pomeroy, 2007 BCCA 142 (CanLII) at para 25

"Court of Appeal"

Definitions
673 In this Part,
"court of appeal" means the court of appeal, as defined by the definition court of appeal in section 2, for the province or territory in which the trial of a person by indictment is held; (cour d’appel)
...


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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

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.

Positions Not Taken at Trial
Defence counsel will not generally be permitted to challenge rulings or decisions that were predicated on positions taken by the trial counsel and were changed on appeal.[9] While counsel are not "locked in" to the trial position, they should not be permitted to directly contradict their position taken at trial.[10]

Raised by Court
Nevertheless, appellate courts have "jurisdiction to invite submissions on an issue neither party has raised".[11]

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."[12]

  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 Moore, 2017 ONCA 947 (CanLII) at para 15
  10. R v Kimberley (2001), 56 O.R. (3d) 18 (C.A.), 2001 CanLII 24120 (ON CA), per Doherty JA at para 56
  11. R v Mian, 2014 SCC 54 (CanLII) at para 28 per Rothstein J
  12. Mian, ibid. at para 35

Intervenors

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.

Alternatively, the test has also been framed as having only two requirements:[2]

  1. the proposed intervenor can show a particular interest in the outcome of the appeal, or
  2. where the intervenor can bring forward some special expertise, perspective, or information that will assist the Court

Limitations on Interveners
Intervenor status in criminal cases is expected to be granted sparingly. [3]

They should generally not be permitted to raise new issues or enhance the record beyond what is already there.[4]

  1. R v Ross, 2012 NSCA 8 (CanLII), per Fichaud JA 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), per Beveridge JA, at para 12
  2. R v Newborn, 2018 ABCA 256 (CanLII) per Slatter JA
    Papaschase Indian Band v Canada (Attorney General), 2005 ABCA 320 (CanLII) at para. 2
    R v Vallentgoed, 2016 ABCA 19 (CanLII) at paras. 5-6
  3. Newborn, supra at para 3
    R v JLA, 2009 ABCA 324 (CanLII) at para 2
    R v Neve, 1996 ABCA 242 (CanLII) at para 16
  4. Newborn, supra at para 3

Mootness

An appeal may be dismissed on account of the issue of the appeal being "moot".

The general rule is that a court should not hear appeals where there is "no live controversy between the parties".[1]

The Court of Appeal has the discretion to hear a moot appeal in "exceptional cases".[2]

  1. Tamil Co-operative Homes Inc v Arulappah, 2000 CanLII 5726 (ON CA), at para 13
  2. R v NG, 2008 ONCA 330 (CanLII)
    Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at p. 353, 47 C.C.C. (3d) 1 at p. 9
    New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124
    M v H, 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 at pp. 44-45, 171 D.L.R. (4th) 577

Other Powers

683 (1)...
Other powers
(3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings preliminary or incidental thereto.
...
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141; 1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67; 2008, c. 18, s. 29.


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Compelling Attendance

683 (1)...
Execution of process
(4) Any process that is issued by the court of appeal under this section may be executed anywhere in Canada.
...
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141; 1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67; 2008, c. 18, s. 29.


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Misc Authority of Crown to Appeal

Appeals by Attorney General of Canada
Right of Attorney General of Canada to appeal
696 The Attorney General of Canada has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has under this Part.
R.S., c. C-34, s. 624.


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Report by Lower Court Judge

Report by judge
682 (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or provincial court judge who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish it or him with a report on the case or on any matter relating to the case that is specified in the request.
Transcript of evidence
(2) A copy or transcript of

(a) the evidence taken at the trial,
(b) any charge to the jury and any objections that were made to a charge to the jury,
(c) the reasons for judgment, if any, and
(d) the addresses of the prosecutor and the accused, if a ground for the appeal is based on either of the addresses,

shall be furnished to the court of appeal, except in so far as it is dispensed with by order of a judge of that court.
(3) [Repealed, 1997, c. 18, s. 96]
Copies to interested parties
(4) A party to an appeal is entitled to receive, on payment of any charges that are fixed by rules of court, a copy or transcript of any material that is prepared under subsections (1) and (2).
Copy for Minister of Justice
(5) The Minister of Justice is entitled, on request, to receive a copy or transcript of any material that is prepared under subsections (1) and (2).
R.S., 1985, c. C-46, s. 682; R.S., 1985, c. 27 (1st Supp.), ss. 143, 203; 1997, c. 18, s. 96.


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See Also