Right of Appeal of Verdicts or Sentences for Indictable Offences

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General Principles

See also: Right of Appeal of Verdicts or Sentences for Summary Offences

At common law, there are no means of appealing convictions or acquittals for indictable offences.[1] The right to appeal an indictable offence to the provincial Court of Appeal is derived from the Criminal Code in Part XXI. Section 672 explicitly provides:

Procedure abolished
674 No proceedings other than those authorized by this Part [Appeals - Indictable Offences] and Part XXVI [extraordinary remedies] shall be taken by way of appeal in proceedings in respect of indictable offences.
R.S., c. C-34, s. 602.
[annotations added]


CCC

There are still the related common law remedies of Habeas Corpus, Mandamus and Certiorari. However the common law writ of error and writ of error coram nobis was removed by the Criminal Code in 1892.[2]

The statutory right of appeal exists for the accused on questions of fact and mixed fact/law. The crown's statutory right to appeal exists on questions of law alone. Appeals on sentence by either Crown or Accused is considered a separate basis of appeal.

Where there is no right to appeal granted by statute, the party seeking appeal must apply and be granted leave for appeal before the court can assess the merits of the appeal issues.

  1. R v Waugh, 2009 NBCA 23 (CanLII), at para 15
  2. R v Reddick, 1992 CanLII 1900 (BC CA)
    Ross v Prince Albert Correctional Centre, 1997 CanLII 11360 (SK QB)

Appeal by Convicted Person

Verdict

An accused person may appeal a conviction for an indictable matters for the situations set out in s. 675

Right of appeal of person convicted
675. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal

(a) against his conviction
(i) on any ground of appeal that involves a question of law alone,
(ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof or on the certificate of the trial judge that the case is a proper case for appeal, or
(iii) on any ground of appeal not mentioned in subparagraph (i) or (ii) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal; or

...
R.S., 1985, c. C-46, s. 675; 1991, c. 43, s. 9; 1995, c. 42, s. 73; 1997, c. 18, s. 92; 1999, c. 31, s. 68; 2002, c. 13, s. 64; 2011, c. 5, s. 2.


CCC

Thus, an accused person may appeal a conviction as of right on a question of law or a decision concerning a prerogative writ (e.g. mandamus , certiorari , or prohibition).[1] The accused needs leave before applying on a question of fact or mixed fact and law.[2] An accused also requires leave to appeal a sentence[3], unless the sentence includes parole ineligibility of greater than 10 years for second degree murder in which case leave is not required.[4]

Where the leave application is denied on any matter except sentence, the accused may apply by filing within 7 days a notice of application for leave to have the appeal heard.[5]

  1. See s. 675(1)(a) re question of law See s. 784(1) and (2) re writs
    R v Leroux 2006 QCCA 1144 (CanLII)
  2. see s. 675(1)(a)
  3. see s. 675(1)(b)
  4. s. 675(2)
  5. s 675(4)

Sentence

Appeal of Sentence is a separate form of appeal from an appeal of verdict.[1]

Crown appeals of sentence for indictable offences must have leave of the court of appeal.[2]

The defence may appeal an sentence under s.675(1)(b):

Right of appeal of person convicted
675. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal
...

(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.


CCC

The Crown may appeal sentence undre s. 676(1)(d):

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
...

(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.


CCC

Under s. 673, a sentence is defined as:

673
...
“sentence” includes

(a) a declaration made under subsection 199(3),
(b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1) or 194(1), section 259, 261 or 462.37, subsection 491.1(2), 730(1) or 737(3) or section 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5,
(c) a disposition made under section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or 742.6(9), and
(d) an order made under subsection 16(1) of the Controlled Drugs and Substances Act; (sentence, peine ou condamnation)

...
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

Orders listed under s. 673 that are deemed to be part of the sentence include:

Under s. 785(b), an appeal of sentence includes appeals against ancillary orders such as driving prohibitions, restitution, discharges, etc.

An appellate court has no authority to consider any issue of fitness of sentence on an appeal of verdict. There must be a specific application to appeal sentence before it can be considered.[3]

  1. For appeals on verdict see Grounds of Defence Appeal and Grounds of Crown Appeal
  2. see s 676 (1) (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.")
  3. R v W. (G.), 1999 CanLII 668 (SCC), [1999] 3 SCR 597 - consideration of sentence without appeal of sentence created an apprehension of bias

Crown Appeal

The crown may appeal on indictable matters for the situations set out in section 676:

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;

...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

This section provides the crown a right of appeal to an acquittal or NCR verdict on a question of law alone (676(1)(a)), a court order to quash an indictment (676(1)(b), 676(1)(c)), an order for a stay of proceedings (676(1)(c)).[1]

The crown has a right of appeal acquittal only on a question of law.[2] Thus, acquittals based on matters of credibility cannot be appealed.

The Crown has a "heavy onus" to overturn an acquittal, particularly on jury verdicts.[3]They are not lightly overturned.[4]

Even where there is a question of law alone, the Crown must still establish a connection between the error in law and the acquittal. The error must be "directly and concretely" related to the acquittal.[5]

The Courts must "avoid seizing on perceived deficiencies in a trial judge's reasons for acquittal to create a ground of unreasonable acquittal."[6]

There are at least four category of cases where assessments of evidence amounts to an error of law:[7]

  1. it is an error of law to make a finding of fact for which there is no supporting evidence. However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule. Rather, it is a conclusion that the standard of persuasion beyond a reasonable doubt has not been met;
  2. the legal effect of findings of fact or of undisputed facts may give rise to an error of law;
  3. an assessment of the evidence based on a misapprehension or misdirection concerning a legal principle is an error of law; and
  4. a failure to consider all the evidence in relation to the ultimate issue of guilt or innocence is also an error of law.

Cases of "unreasonable verdict" or "miscarriage of justice" have little relevance to crown appeals under s.676(1)(a) for error of law.[8]

  1. R v Chapman, 2016 ONCA 310 (CanLII), at para 13
  2. see s. 676(1)(a)
  3. R v Samuels (J.K.), 2009 ONCA 614 (CanLII) at para 19
    R v Evans, 1993 CanLII 102 (SCC), [1993] 2 SCR 629 at p. 645 referring to a “very heavy onus”
  4. R v Sutton, 2000 SCC 50 (CanLII), [2000] 2 SCR 595 at para 2
  5. R v R.G.B., 2012 MBCA 5, 275 Man.R. (2d) 119 at para 19
  6. R v Walker 2008 SCC 34 (CanLII) at para 2
  7. R. v J.M.H., 2011 SCC 45 (CanLII), [2011] 3 S.C.R. 197, at paras 25-32
  8. R v JMH 2011 SCC 45 (CanLII) at para 35