Appeals

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Introduction

An appeal is an application to review a matter that has been decided by a Court. The appeal is directed to the "higher" level of court above the level of the deciding court.

The venue for the appeal depends on the venue and mode of the original proceedings.[1] Matters that are elected indictably are appealed to the Court of Appeal while matters that are summary conviction offences are appealed to the Supreme Court of the province.[2] With some exception, the type of conviction does not determine the forum of appeal.

If the accused is prosecuted indictably but convicted of a lesser summary offence, the appeal is to proceed as if by indictment.[3]

One of the roles of appellate level courts is to "rein in overly elastic interpretation ... provided the courts stop short of judicial amendment".[4]

Appeals flowchart.png

Guilty Pleas
Generally, a guilty plea to an offence includes a waiver of any right of appeal against conviction.[5]

History
The current right of statutory was introduced in 1923 with Act to amend the Criminal Code, S.C. 1923, c. 41, s. 9, through the creation of what is now Part XXI and Part XXVI. [6] It was closely modeled on the UK's Criminal Appeal Act, 1907 (U.K.), c. 23.[7]

It was in 1930, the appeal provisions were amended to include Crown appeals on questions of law.[8]

  1. s. 813
  2. R v Edmunds, 1981 CanLII 173 (SCC), [1981] 1 SCR 233
  3. R v Yaworski (1959), 31 C.R. 55 (Man. C.A.)
  4. Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76, 2004 SCC 4 (CanLII) at para 122 - dissenting in part
  5. See Guilty Plea
  6. Public Prosecution Service of Canada Deskbook at s. 3.2
  7. R v Meltzer, 1986 CanLII 1172 (BC CA) at para 45
  8. Deskbook, , ibid.

Role of Appellate Justices

An appellate court's role includes the power to "rein in overly elastic interpretations" found within legislation so long as it falls should of "judicial amendments".[1]

The role also includes "providing guidance to trial judges on the application of discretionary rules".[2]

  1. R v SDL, 2017 NSCA 58 (CanLII) at para 9 to 10, 17
    Canadian Foundation for Children, Youth & the Law v Canada (Attorney General), 2004 SCC 4 (CanLII) at para 122
  2. SDL, ibid. at para 11
    Professor Stephen Waddams, in “Judicial Discretion” (2001) 1 O.U.C.L.J. 59 at p. 59 (" the open-ended nature of a legal rule does not, in itself, present any particular reason to defer to a judge of first instance; on the contrary, the open-ended nature of a rule may be very good reason for the appellate court to give guidance and to settle uncertainties")

Topics

Misc Terminology

Interpretation
Definitions
673 In this Part,
"indictment" includes an information or charge in respect of which a person has been tried for an indictable offence under Part XIX; (acte d’accusation) registrar means the registrar or clerk of the court of appeal; (registraire)
...
"trial court" means the court by which an accused was tried and includes a judge or a provincial court judge acting under Part XIX. (tribunal de première instance)
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.


CCC

See Also