Appeals Other Than Verdicts or Sentences

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Introduction

Interlocutory Orders
As appeals are only available by statute, there is no authority to appeal an interlocutory order from a provincial court.[1] Any appeal from an interlocutory order must occur at the end of the whole proceedings.[2]

  1. e.g. see R v Dobson, 2016 NBCA 18 (CanLII)
  2. R v Primeau, 1995 CanLII 143 (SCC), [1995] 2 SCR 60 at paras 11-12
    R v Scott, 2015 MBCA 80 (CanLII) at para 4

Stay of Proceedings or Quashing of Charges

Right of Attorney General to appeal
676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;
(b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment;
(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment; or
(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.

...
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.


CCC

Costs

A party may appeal a judgement of costs against them under s. 676.1 with leave of the court:

Appeal re costs
676.1 A party who is ordered to pay costs may, with leave of the court of appeal or a judge of a court of appeal, appeal the order or the amount of costs ordered.
1997, c. 18, s. 94.


CCC

In order to appeal a costs order against the Crown, the appellant must obtain leave from the court on the basis of having an "arguable case", an issue that is "important" and there is no "prejudice or bar" to hearing the appeal.[1]

  1. see R v Griffin, 2011 ABCA 197 (CanLII) at para 17

Prerogative Writs

See also: Mandamus, Certiorari, and Prohibition and Habeas Corpus

Appeal in mandamus, etc.
784. (1) An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.
Application of Part XXI
(2) Except as provided in this section, Part XXI applies, with such modifications as the circumstances require, to appeals under this section.
Refusal of application, and appeal
(3) Where an application for a writ of habeas corpus ad subjiciendum is refused by a judge of a court having jurisdiction therein, no application may again be made on the same grounds, whether to the same or to another court or judge, unless fresh evidence is adduced, but an appeal from that refusal shall lie to the court of appeal, and where on the appeal the application is refused a further appeal shall lie to the Supreme Court of Canada, with leave of that Court.
Where writ granted
(4) Where a writ of habeas corpus ad subjiciendum is granted by any judge, no appeal therefrom shall lie at the instance of any party including the Attorney General of the province concerned or the Attorney General of Canada.
Appeal from judgment on return of writ
(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the Supreme Court of Canada, with the leave of that Court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.
Hearing of appeal
(6) An appeal in habeas corpus matters shall be heard by the court to which the appeal is directed at an early date, whether in or out of the prescribed sessions of the court.
R.S., 1985, c. C-46, s. 784; 1997, c. 18, s. 109.


CCC

Contempt of Court

See also: Contempt of Court (Offence)

Appeal
10. (1) Where a court, judge, justice or provincial court judge summarily convicts a person for a contempt of court committed in the face of the court and imposes punishment in respect thereof, that person may appeal

(a) from the conviction; or
(b) against the punishment imposed.

Idem
(2) Where a court or judge summarily convicts a person for a contempt of court not committed in the face of the court and punishment is imposed in respect thereof, that person may appeal

(a) from the conviction; or
(b) against the punishment imposed.

Part XXI applies
(3) An appeal under this section lies to the court of appeal of the province in which the proceedings take place, and, for the purposes of this section, the provisions of Part XXI apply, with such modifications as the circumstances require.
R.S., 1985, c. C-46, s. 10; R.S., 1985, c. 27 (1st Supp.), s. 203.


CEA

Public Interest Privilege

See also: Privilege

Appeal to court of appeal
37.1 (1) An appeal lies from a determination under any of subsections 37(4.1) to (6)

(a) to the Federal Court of Appeal from a determination of the Federal Court; or
(b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province.

Limitation period for appeal
(2) An appeal under subsection (1) shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances.
2001, c. 41, ss. 43, 141.
Limitation periods for appeals to Supreme Court of Canada
37.2 Notwithstanding any other Act of Parliament,

(a) an application for leave to appeal to the Supreme Court of Canada from a judgment made under subsection 37.1(1) shall be made within 10 days after the date of the judgment appealed from or within any further time that the court having jurisdiction to grant leave to appeal considers appropriate in the circumstances; and
(b) if leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the court that grants leave.

2001, c. 41, s. 43.


CEA

Stay of Proceedings or Quashing an Indictment

See also: Stay of Proceedings

Crown appeals of a stay of proceedings can be made under s. 676(1)(c) which states:

676.(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
...

(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment;

...
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.


CCC

A stay of proceeding that is done by a court other than the "trial court", such as by a judge before an election is made, is not appealable.[1]

  1. R v Waugh, 2009 NBCA 23 (CanLII)

Appeal of Voir Dire

A voir dire hearing can happen at any point during a proceeding before the final decision on guilt. Parties may have a right to appeal the ruling of a voir dire, however, the proceeding will generally not be put on hold pending a ruling of the appeal.

A guilty plea after a voir dire will usually extinguish any right to appeal.[1]

As best practice, to preserve the right to appeal, the accused shall admit the facts alleged by the Crown and invite the judge to convict.[2]

  1. R v Chuhaniuk, 2010 BCCA 403 (CanLII) at para 45
    R v Carter, 2003 BCCA 632 (CanLII)
    R v Bowman, 2008 BCCA 410 (CanLII)
    R v Webster, 2008 BCCA 458 (CanLII)
    c.f. R v Liberatore, 2014 NSCA 109 (CanLII)
  2. R v Duong, 2006 BCCA 325 (CanLII) at para 8
    c.f. R v Liberatore

Appeal of a Charter Voir Dire

See also: Charter Applications

When reviewing a denial of a Charter application the reviewing court should:[1]

  1. review the "decision to ensure that the correct legal principles were stated and there was no misdirection on their application";
  2. review the "evidentiary foundation forming the basis of the judge's decision...to see if there was an error."
  3. review the "application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the legal test."

The statement of law and principles by the judge are reviewed as a question of law and is subject to the standard of review of correctness.[2] Facts in a Charter voir dire are to be reviewed as a question of law of a standard of "palpable and overriding error".[3] The application of the facts to the law are reviewed on a standard of "correctness".[4]

  1. Richard (DR), 2013 MBCA 105 (CanLII) at para 48
  2. R v Richard (D.R.) at para 48
  3. Richard at para 48
  4. Ricard at para 48