Appeal Procedure

From Criminal Law Notebook
This page was last substantively updated or reviewed November 2023. (Rev. # 89959)

General Principles

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

Appeals are begun with the filing of a Notice of Appeal or Notice of Application for Leave to Appeal, depending on the statutory jurisdiction. This notice must be within the set period of time established by the local provincial rules of court.

Counsel must then compile the record of proceedings and file it with the appellate court. Once the record is filed the parties can file their factums setting out the facts and the argument on the issues of appeal.

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]

"Court of Appeal"
Definitions

673 In this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)],
"court of appeal" means the court of appeal, as defined by the definition court of appeal in section 2 [general Code definitions], for the province or territory in which the trial of a person by indictment is held; (cour d’appel)
...
R.S., 1985, c. C-46, s. 673; R.S., 1985, c. 27 (1st Supp.), ss. 138, 203, c. 23 (4th Supp.), s. 4, c. 42 (4th Supp.), s. 4; 1992, c. 1, s. 58; 1993, c. 45, s. 10; 1995, c. 22, s. 5, c. 39, ss. 155, 190; 1996, c. 19, s. 74; 1999, c. 5, ss. 25, 51, c. 25, ss. 13, 31(Preamble); 2002, c. 13, s. 63; 2005, c. 22, ss. 38, 45; 2006, c. 14, s. 6; 2013, c. 11, s. 2; 2018, c. 16, s. 220, c. 21, s. 21; 2019, c. 25, s. 278.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 673

  1. R v PRF, 2001 CanLII 21168 (ON CA), OR (3d) 475, per Rosenberg JA (3:0), 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), 218 CCC (3d) 400, per Donald JA (3:0), at para 25

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 CanLII 699 (SCC), [1999] 2 SCR 817, per L’Heureux-Dubé J, at para 12
    Johannesson, supra, at para 4
  5. Johannesson, supra, at para 6

Notice to Appeal

The first step when undertaking an appeal is notice to the necessary persons and entities.

Notice of Jurisdiction

While it is not a necessary prerequisite, the appellant should include a reference to the jurisdictional basis for appeal in their notice.[1]

Issues of Appeal

Making New Arguments on Appeal

The Crown as respondent is entitled to raise any argument to support a conviction so long as it is based on the trial record.[2]

Generally, a respondent can "raise any argument which supports the order of the court below". They are not limited to those arguments made before the trial judge.[3]

Appellate Court Raising Issues Not Raised by Counsel

It is inappropriate for the appellate court to raise any issues not raised by either Crown or Defence.[4] 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."[5]

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.[6]

Accused Raising New Charter Issues on Appeal

The accused may only raise a Charter issue on appeal that was not raised at trial where the following has been met: [7]

  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 Montesano, 2019 ONCA 194 (CanLII), per curiam, at para 23 (" In future cases it may be helpful to include in the notice of appeal a brief reference to the jurisdictional basis for the appeal so that the scope of appellate relief available is readily ascertainable. We consider such a course a matter of good practice, not a condition precedent to a valid notice of appeal.")
  2. R v SH, 2019 ONCA 669 (CanLII), 377 CCC (3d) 335, per Simmons JA (2:1), at para 29
    R v C(WB), 2000 CanLII 5659 (ON CA), 142 CCC (3d) 490, per Weiler JA
  3. R v Keegstra, 1995 CanLII 91 (SCC), [1995] 2 SCR 381, per Lamer CJ (9:0)
  4. R v T(SG), 2010 SCC 20 (CanLII), [2010] 1 SCR 688, per Charron J (5:2), at paras 36 to 7
  5. Commission on the Donald Marshall, Jr., Prosecution, at p. 22 [1]
  6. R v Mian, 2014 SCC 54 (CanLII), [2014] 2 SCR 689, per Rothstein J (7:0)
  7. R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918, [1993] SCJ 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 issues 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]

Crown counsel is generally not permitted to raise issues that were not advanced at trial.[5] However, the Crown as respondent may advance any argument to sustain a conviction based on the trial record.[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]

Discretion to Allow New Issue

The Court of Appeal has the discretion to allow new issues. The decision must be "guided by the balancing of the interests of justice as they affect all parties."[8] It should only be in "exceptional circumstances" that the appeal court should entertain new issues or grounds.[9]

The Court should consider:[10]

  1. whether the issue is actually new
  2. "whether the evidentiary record and the interests of justice support granting an exception to the general rule against raising new issues on appeal"

Where the new issue is on a question of law alone and does not require leading of evidence, it is "more likely" that the issue will be allowed.[11]

The "interests of justice" include considering "whether entertaining the issue for the first time on appeal might lead to a different ultimate outcome for the parties."[12] A Court may hear a new issue on appeal if refusing leave would "risk an injustice."[13]

Failure to raise issues at trial for tactical reasons should weigh heavily against allowing new issues to be raised.[14]

New Charter Issues

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.[15]

In Alberta, the applicant can advance a Charter issue on appeal not raised at trial where:[16]

  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.[17] While counsel are not "locked in" to the trial position, they should not be permitted to directly contradict their position taken at trial.[18]

Raised by Court

Nevertheless, appellate courts have "jurisdiction to invite submissions on an issue neither party has raised."[19]

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."[20]

  1. R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918, per L'Heureux-Dubé J (dissent), at pp. 923-924
    R v Warsing, 1998 CanLII 775 (SCC), [1998] 3 SCR 579, per L'Heureux-Dubé J (dissenting in part), at para 16
    Kaiman v Graham, 2009 ONCA 77 (CanLII), 245 OAC 130, per Weiler JA (3:0), at [http://canlii.ca/t/228tk#par18 paras 18 to 19]
    R v Roach, 2009 ONCA 156 (CanLII), 246 OAC 96, per Doherty JA (3:0), at para 6
    R v Reid, 2016 ONCA 524 (CanLII), 338 CCC (3d) 47, per Watt JA (3:0), at paras 38 to 39
  2. Brown, supra
  3. e.g. R v Potvin, 1993 CanLII 113 (SCC), [1993] 2 SCR 880, per Sopinka J, at p. 916
    R v Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 (CanLII), [2002] 2 SCR 559, per Iacobucci J (7:0), at paras 58 to 59
    R v Tse, 2012 SCC 16 (CanLII), [2012] 1 SCR 531, per Moldaver and Karakatsanis J (9:0), at para 57
  4. Giguere v Chambre des notaires du Quebec, 2004 SCC 1 (CanLII), [2004] 1 SCR 3, per Gonthier J (6:1), at para 34
  5. R v Varga, 1994 CanLII 8727 (ON CA), [1994] OJ No 1111 (CA), per Doherty JA (3:0), at paras 25, 26, 38 and 40
  6. R v SH, 2019 ONCA 669 (CanLII), at para 29
    R v C(WB), 2000 CanLII 5659 (ON CA), 130 OAC 1, per Weiler JA
    R v Perka, 1984 CanLII 23 (SCC), [1984] 2 SCR 232, per Dickson J at 238-40
    Idziak v Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 SCR 631, per Cory J at 643-4
    R v Keegstra, 1995 CanLII 91 (SCC), [1995] 2 SCR 381, per Lamer CJ at 398
  7. R v Blair, 2000 CanLII 16821 (ON CA), per curiam (3:0)
  8. Kaiman v Graham, 2009 ONCA 77 (CanLII), 245 OAC 130, per Weiler JA, at para 18
    R v Ahmed, 2019 SKCA 47 (CanLII), 10 WWR 99, per Barrington-Foote J, at para 15
    R v Vidulich, 1989 CanLII 231 (BC CA), 37 BCLR (2d) 391, 8 WCB (2d) 52), per Lambert JA at 398-399 ("The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done, that a new ground is likely to be permitted to be raised on appeal.")
  9. R v SSC, 2008 BCCA 262 (CanLII), per Chiasson JA, at para 16 ("In the absence of exceptional circumstances, appellate courts do not entertain issues or grounds of appeal at first instance. Whether to grant leave to do so is in the discretion of the Court.")
  10. R v Gill, 2018 BCCA 144 (CanLII), 26 MVR (7th) 138, per Fitch JA, at para 12
    Ahmed, supra, at para 15
  11. Vidulich, supra at 399 ("Such a new ground is more likely to be permitted where it raises an issue of law alone than where it requires the leading of evidence either in the appeal court or at a new trial.")
  12. Gill, supra, at para 12
    Ahmed, supra, at para 15
  13. Gill, supra, at para 12
    Vidulich, supra at 399 ("The result is that it is only in those exceptional cases where balancing the interests of justice to all parties leads to the conclusion that an injustice has been done")
  14. Ahmed, supra, at para 16
    R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918, at p. 927 (SCR), per L’Heureux-Dubé J. dissenting, but not on this point
    R v Reid, 2016 ONCA 524 (CanLII), 338 CCC (3d) 47, per Watt JA, at para 43
    R v Dignard, 2017 MBCA 123 (CanLII), per Beard JA, at para 7
    R v Downey, 2015 NBCA 25 (CanLII), 1134 APR 315, per Baird JA, at para 12
    Vidulich, supra at 398 ("An accused must put forward his defences at trial. If he decides at that time, as a matter of tactics or for some other reason, not to put forward a defence that is available, he must abide by that decision. He cannot expect that if he loses on the defence that he has put forward, he can then raise another defence on appeal and seek a new trial to lead the evidence on that defence.")
  15. R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918, per J, at para 20
    R v Black, 2010 NBCA 36 (CanLII), 255 CCC (3d) 62, per Bell JA, at para 3
  16. R v Fertel, [1993] AJ No 767(*no CanLII links) , at para 21 citing R v Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918, per J
    see also R v Jacobs, 2014 ABCA 172 (CanLII), 312 CCC (3d) 45, per curiam (3:0)
  17. R v Moore, 2017 ONCA 947 (CanLII), 357 CCC (3d) 500, per Trotter JA, at para 15
  18. R v Kimberley, 2001 CanLII 24120 (ON CA), (2001), 56 OR (3d) 18, per Doherty JA, at para 56
  19. R v Mian, 2014 SCC 54 (CanLII), [2014] 2 SCR 689, per Rothstein J, at para 28
  20. 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), 987 APR 305, per Fichaud JA, at para 12 John Sopinka & Mark A. Gelowitz in The Conduct of an Appeal, 2nd ed. (Canada: Butterworths, 2000), at p. 258-59
    R v Fraser, 2010 NSCA 106 (CanLII), 940 APR 281, 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), 380 AR 301, per Fraser CJ, at para 2
    R v Vallentgoed, 2016 ABCA 19 (CanLII), 612 AR 72, per Veldhuis JA, at paras 5 to 6
  3. Newborn, supra, at para 3
    R v JLA, 2009 ABCA 324 (CanLII), 464 AR 310, per Watson JA, at para 2
    R v Neve, 1996 ABCA 242 (CanLII), 108 CCC (3d) 126, per Irving JA (2:1), 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]

Discretion has been exercised on matters that require guidance or clarity from an appellate level of court.[3]

There are certain matters, such as bail, that have been considered "evasive of appellate review" are also to be factored into the decision to exercise discretion.[4]

  1. Tamil Co-operative Homes Inc v Arulappah, 2000 CanLII 5726 (ON CA), 192 DLR (4th) 177, per Doherty JA (3:0), at para 13
  2. R v NG, 2008 ONCA 330 (CanLII), per curiam (3:0)
    Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342, at p. 353, 47 CCC (3d) 1, per Sopinka J (7:0), at p. 9
    New Brunswick (Minister of Health and Community Services) v G(J), 1999 CanLII 653 (SCC), [1999] 3 SCR 46, 177 DLR (4th) 124, per Lamer CJ
    M v H, 1999 CanLII 686 (SCC), [1999] 2 SCR 3, 171 DLR (4th) 577, at pp. 44-45
  3. R v Myers, 2019 SCC 18 (CanLII), [2019] 2 SCR 105, per Wagner CJ, at para 14
  4. Myers, ibid., at para 14
    R v Oland, 2017 SCC 17 (CanLII), [2017] 1 SCR 250, per Moldaver J, at para 17 ("...as bail pending appeal was, by its temporary nature, evasive of appellate review, this was an appropriate case to resolve the conflicting jurisprudence...")

Death of Appellant

Traditionally, an appeal matter should not survive the death of the accused.[1] An appeal is abated even if the case has been argued and the decision reserved.[2] There is some discretion to continue despite the death of the accused.[3]

To continue the court should consider:[4]

  1. the existence of a truly adversarial context;
  2. the presence of particular circumstances which justify the expenditure of limited judicial resources to resolve the issue; and
  3. the respect shown by courts to limit themselves to their proper adjudicative role, as opposed to making freestanding legislative-type pronouncements.

The analysis should follow a 2 step approach:[5]

  1. "inquiry and determination whether the required tangible and concrete dispute has disappeared and the issues have become academic" and
  2. if so, "court should then determine whether it should exercise its discretion to hear the case", which involves considering whether there are "special circumstances" that make it in the "interests of justice" to continue.

Factors to consider should consist of:[6]

  1. whether the appeal will proceed in a proper adversarial context;
  2. the strength of the grounds of the appeal;
  3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:
    1. a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
    2. a systemic issue related to the administration of justice;
    3. collateral consequences to the family of the deceased or to other interested persons or to the public;
  4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;
  5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the Court in free-standing, legislative-type pronouncements more properly left to the legislature itself.
  1. R v Slingerland, 2020 ONCA 417 (CanLII), per curiam, at para 8
    R v Monney, 2020 ONCA 6 (CanLII), per curiam, at para 6
  2. Slingerland, ibid., at para 8
    R v Cadeddu, 1983 CanLII 1763 (ON CA), 3 CCC (3d) 112, per curiam at p. 114
    R v Smith, 2004 SCC 14, [2004] 1 SCR 385, per Binnie J, at para 11
  3. Slingerland, supra, at para 8
    Cadeddu, supra at p. 118 to 119
  4. Slingerland, supra, at para 10
    Borowski v Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342, per Sopinka J, at p. 353
    Smith, supra, at para 33
  5. Slingerland, supra, at paras 11 to 12
    Monney, supra, at paras 9 to 10
  6. R v Poulin, 2019 SCC 47 (CanLII), 379 CCC (3d) 513, per Martin J, at para 50

Other Powers

683
[omitted (1), (2), (2.1), (2.2) and (2.3)]

Other powers

(3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) [powers of court of appeal – interests of justice] 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.
[omitted (4), (5), (5.1), (6) and (7)]
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, 1985, 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.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 683(3)

Compelling Attendance

683
[omitted (1), (2), (2.1), (2.2), (2.3) and (3)]

Execution of process

(4) Any process that is issued by the court of appeal under this section may be executed anywhere in Canada.
[omitted (5), (5.1), (6) and (7)]
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, 1985, 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.

CCC (CanLII), (DOJ)


Note up: 683(4)

Common Law Publication Bans

See also: Statutory Publication Ban on Identity Information

A Court of Appeal has jurisdiction to order publication bans "in the interests of justice for the orderly management of the appeal.[1]

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 [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)].
R.S., c. C-34, s. 624.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 696

Report by Lower Court Judge

Section 682(1) permits the trial judge to file a report on the case or anything else as requested by the appellate court. These reports may be used in "rare circumstances" to address something that occurred that is not on the record--often arising where opposing counsel cannot simply agree on the issue.[1]

Report by judge

682 (1) Where, under this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], 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) [appellate court requesting report by judge] and (2) [appellate court requesting report by judge – transcript].

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) [appellate court requesting report by judge] and (2) [appellate court requesting report by judge – transcript].
R.S., 1985, c. C-46, s. 682; R.S., 1985, c. 27 (1st Supp.), ss. 143, 203; 1997, c. 18, s. 96.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 682(1), (2), (4), and (5)

Unsoliticted

See Also

  1. R v E(AW), 1993 CanLII 65 (SCC), [1993] 3 SCR 155, per Cory J at p. 192
    R v KJMJ, 2023 NSCA 84 (CanLII), per Bryson JA