Procedural Powers of the Appellate Courts

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

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]

Source of Authority

The Court of Appeal is a court of inherent jurisdiction and is not recognized in common law. It is a "creature of statute" where its powers to hear cases and make orders must come from statute. [3]

Under s. 683, the Court of Appeal's main powers consist of the authority to:

  • order the production of any writing, exhibit or other thing connected with the proceedings;
  • "order any witness ... to attend and be examined before the court of appeal..." and admit the testimony as evidence;
  • order an inquiry and report to a special commissioner and to act on such a report; and,
  • amend an indictment

The court also has "ancillary" authority to control its own process. [4]

  1. R v P.R.F. 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
  3. R v W.(G.), 1999 CanLII 668 (SCC), [1999] 3 SCR 597 at para 8 - power of CA to hear criminal appeals is statutory
    Kourtessis v M.N.R., 1993 CanLII 137 (SCC), [1993] 2 SCR 53, at pp. 69-70
    R v Meltzer, 1989 CanLII 68 (SCC), [1989] 1 SCR 1764, at p. 1773
  4. e.g. R v Zaharia (1986), 25 CCC (3d) 149 (Ont. C.A.)(*no link)

Disclosure Motion

An accused may apply to the court of appeal for a disclosure, usually in the context of a fresh evidence application.

Third party records can be obtained through application under s. 683. These production orders apply the same law as at trial level.[1] The applicant must show:[2]

  1. There is a connection between the request for production and the fresh evidence he proposes to adduce in that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence; and
  2. There is a reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.
  1. R v Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439 (C.A.)
  2. R v Hobbs, 2010 NSCA 32 (CanLII) at para 28

Report by Trial Judge

The Court of Appeal may order provincial court judge to make a report relating to a case:

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.
R.S., 1985, c. C-46, s. 682; R.S., 1985, c. 27 (1st Supp.), ss. 143, 203; 1997, c. 18, s. 96.


Section 682 is considered a "historical anachronism" from the days when full transcripts of decisions were rare.[1] It should only be permitted "where something has occurred which is not reflected on the record upon which opposing counsel cannot agree".[2]

It should be used "rarely" and has a tendency to do more to influence the Court of Appeal rather than assist the Court.[3]

  1. R v A.W.E., 1993 CanLII 65 (SCC), [1993] 3 SCR 155 at para 190
  2. A.W.E. at paras 191-192
  3. R v Dhillon, 2014 BCCA 182 (CanLII)

Amending Indictments or Informations

Under s. 683(1)(g), the court of appeal may amend an information or indictment subject to the appeal. In doing so, the court should consider:

It is section 683(1)(g), not section 686(1)(b)(i), that provides an appeal court with the authority to amend an indictment or information on appeal. In deciding whether to amend, an appeal court should consider:[1]

  1. the original indictment;
  2. the evidence at trial;
  3. the positions of the parties at trial;
  4. the instructions of the trial judge;
  5. the verdict of the jury; and
  6. the issues raised on appeal.
  1. R v Fraser, 2007 SKCA 113 (CanLII) at para 60

Consequently, the remedial provisions of s. 686 are also applicable when considering a defence appeal against conviction, unfitness or NCR verdict the court is guided by s. 686:

686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;

R.S., 1985, c. C-46, s. 686; R.S., 1985, c. 27 (1st Supp.), ss. 145, 203; 1991, c. 43, s. 9; 1997, c. 18, s. 98; 1999, c. 3, s. 52, c. 5, s. 26.


Re-opening an Appeal

The Court of Appeal has "inherent jurisdiction to re-open an appeal".[1] It is an "extraordinary power" that is to be "exercised rarely" and requires "the demonstration of a potential miscarriage of justice".[2]

Factors to consider include:[3]

  1. Finality is a primary but not always determinative factor.
  2. The interests of justice include finality and the risk of a miscarriage of justice.
  3. The applicant must make out a clear and compelling case to justify a re-opening.
  4. If the case has been heard on the merits the applicant must show that the court overlooked or misapprehended the evidence or an argument.
  5. The error must go to a significant aspect of the case.

There should be a demonstrated "potential miscarriage of justice".[4]

  1. R v Chudley, 2016 BCCA 142 (CanLII) at para 3
    R v Chudley, 2015 BCCA 391 (CanLII) at para 9
    R v Hummel, 2003 YKCA 4 (CanLII)
  2. R v Chudley, at para 3
  3. Chudley, at para 9
    Hummel at para 24
  4. Chudley, at para 10
    R v Jahanrakhshan, 2013 BCCA 398 (CanLII) at para 5