Right of Appeal by Accused of Verdicts or Sentences for Indictable Offences

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General Principles

At common law, there are no means of appealing convictions or acquittals for indictable offences. 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, s. 673 to 696] and Part XXVI [Extraordinary Remedies, s. 774 to 784] shall be taken by way of appeal in proceedings in respect of indictable offences.
R.S., c. C-34, s. 602.

[annotation(s) added]

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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.

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.

What Constitutes a Sentence

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.

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

• Weapons Prohibition Orders (109 or 110)
• Section 161 Orders (161)
• Forfeiture Order for Computer-related Property (164.2)
• Damages Order for Intercepting or Disclosing Private Communications (194(1))
• Driving Prohibition Orders (259)
• An order staying a driving prohibition order (261)
• Order of Forfeiture for Proceeds of Crime (462.37)
• Order for restitution or forfeiture of property obtained by crime (491.1(2))
• Order of discharge (730(1))
• Victim Fine Surcharge (737(3) or (5))
• Restitution Orders (738, 739)
• Conditional Sentence Orders (742.1, 742.3, 742.4(3) or 742.6(9))
• Order for Delayed Parole (743.6, 745.4 or 745.5)
• Probation Orders (731, 732.2(3) or (5))
• Intermittent Jail Sentence Orders (732)
• CDSA Forfeiture Order (s. 16(1) CDSA)

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.

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

(b)...

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.

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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). The accused needs leave before applying on a question of fact or mixed fact and law. An accused also requires leave to appeal a sentence, unless the sentence includes parole ineligibility of greater than 10 years for second degree murder in which case leave is not required.

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.

Sentence

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

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.

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Leave to Appeal
The standard to meet when seeking leave to appeal from sentence requires the appellant to show that the appeal is not "frivolous in the sense of having no arguable basis or sufficient merit".

Appeal From Conviction For Specific Cases

Second Degree Murder

675
...
Appeal against absolute term in excess of 10 years
(2) A person who has been convicted of second degree murder and sentenced to imprisonment for life without eligibility for parole for a specified number of years in excess of ten may appeal to the court of appeal against the number of years in excess of ten of his imprisonment without eligibility for parole.
...
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.

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First or Second Degree Murder by Youth

675
...
Persons under eighteen
(2.2) A person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and sentenced to imprisonment for life without eligibility for parole until the person has served the period specified by the judge presiding at the trial may appeal to the court of appeal against the number of years in excess of the minimum number of years of imprisonment without eligibility for parole that are required to be served in respect of that person’s case.
...
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.

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Delayed Parole Order Under s. 743.6 or 745.51

675
...
Appeal against section 743.6 order
(2.1) A person against whom an order under section 743.6 [an order delaying parole eligibility] has been made may appeal to the court of appeal against the order.
...
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.
[annotations added]

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675
...
Appeal against s. 745.51(1) order
(2.3) A person against whom an order under subsection 745.51(1) [order delaying parole for multiple murders] has been made may appeal to the court of appeal against the order.
...
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.
[annotations added]

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Verdict Based on Mental Disorder

675
...
Appeals against verdicts based on mental disorder
(3) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered in respect of a person, that person may appeal to the court of appeal against that verdict on any ground of appeal mentioned in subparagraph (1)(a)(i), (ii) or (iii) and subject to the conditions described therein.
...
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.

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Review of Denial of Leave to the Court of Appeal

675
...
Where application for leave to appeal refused by judge
(4) Where a judge of the court of appeal refuses leave to appeal under this section otherwise than under paragraph (1)(b), the appellant may, by filing notice in writing with the court of appeal within seven days after the refusal, have the application for leave to appeal determined by the court of appeal.
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.

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Crown Appeal

Crown appeals of sentence for indictable offences must have leave of the court of 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.

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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)).

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

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

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.

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

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

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.

Acquittal Verdict Includes Offences Where Other Charges Convicted

676
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Acquittal
(2) For the purposes of this section, a judgment or verdict of acquittal includes an acquittal in respect of an offence specifically charged where the accused has, on the trial thereof, been convicted or discharged under section 730 of any other offence.
...

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Crown Appeal on Specific Types of Charges

Decision on Mental Health

676 (1) ...
Appeal against verdict of unfit to stand trial
(3) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against a verdict that an accused is unfit to stand trial, on any ground of appeal that involves a question of law alone.
...
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.

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Decision on Parole Ineligibility for Murder

676 (1) ...
Appeal against ineligible parole period
(4) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal in respect of a conviction for second degree murder, against the number of years of imprisonment without eligibility for parole, being less than twenty-five, that has been imposed as a result of that conviction.
...
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.

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Decision on Delayed Parole Under s. 743.6 or 745.51

676 (1) ...
Appeal against decision not to make section 743.6 order
(5) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against the decision of the court not to make an order under section 743.6.
Appeal against decision not to make s. 745.51(1) order
(6) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against the decision of the court not to make an order under subsection 745.51(1).
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.

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Stay of Proceedings or Quashing of Indictment

• See Appeals Other Than Verdicts or Sentences#Crown Appeal of a Stay of Proceedings or Quashing of Charges