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Appeal Procedure for Indictable Convictions

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 98175)

General Principles

See also: Appeal Procedure and Appeal Procedure For Summary Convictions
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. [1]

Under s. 683, the Court of Appeal's main powers consists 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. [2]

  1. ↑ R v W(G), 1999 CanLII 668 (SCC), [1999] 3 SCR 597, per Lamer CJ, 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, per La Forest J, at pp. 69-70
    R v Meltzer, 1989 CanLII 68 (SCC), [1989] 1 SCR 1764, per McIntyre J, at p. 1773
  2. ↑ e.g. R v Zaharia, 1986 CanLII 4633, 25 CCC (3d) 149, per Zuber JA

Notice of Appeal

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 [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], 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.
[omitted (2), (3), (4) and (5)]
R.S., 1985, c. C-46, s. 682; R.S., 1985, c. 27 (1st Supp.), ss. 143, 203; 1997, c. 18, s. 96.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 682(1)

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 AWE, 1993 CanLII 65 (SCC), [1993] 3 SCR 155, per Cory J, at para 190
  2. ↑ AWE, ibid., at paras 191 to 192
  3. ↑ R v Dhillon, 2014 BCCA 182 (CanLII), per Levine JA

Amending Indictments or Informations

Section 683(1)(g) 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.
Powers of court of appeal

683 (1) For the purposes of an appeal under this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], the court of appeal may, where it considers it in the interests of justice,

[omitted (a), (b), (c), (d), (e), (f)]
(g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

[omitted (2), (2.1), (2.2), (2.3), (3), (4), (5), (5.1), (6), and (7)]
R.S., 1985, c. C-46, s. 683; R.S., 1985, c. 27 (1st Supp.), s. 144, c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10; 1997, c. 18, ss. 97, 141; 1999, c. 25, s. 15(Preamble); 2002, c. 13, s. 67; 2008, c. 18, s. 29; 2019, c. 25, s. 281.

– CCC (CanLII), (DOJ)

Note up: 683(1)

This section permits amendments to the information or indictment "where the amendment cures a variance between the charge laid and the evidence led at trial regardless of whether the amendment materially changes the charge, substitutes a new charge for the initial charge, or adds an additional charge"[2]

The court of appeal has broad authority to amend the information or indictment "unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal."[3] The burden is on the Crown to show that the accused had "full opportunity to meet all issues raised by the charge as amended" and the defence would have been conducted the same way.[4]

This power promotes "determination of criminal cases on their merits."[5]

  1. ↑ R v Fraser, 2007 SKCA 113 (CanLII), 411 WAC 210, per Klebuc JA, at para 60
  2. ↑ R v Irwin, 1998 CanLII 2957 (ON CA), 38 O.R. (3d) 689 (C.A.), per Doherty JA at pp. 699-700
    R v Wilson, 2022 ONCA 857 (CanLII), per Roberts JA, at para 31
  3. ↑ Wilson, ibid., at para 31
  4. ↑ Wilson, ibid., at para 32
    Irwin at p. 702 (OR)
  5. ↑ R v A.S., 1998 CanLII 14610 (ON CA), 130 CCC (3d) 320, per Finlayson JA, at para 4, leave to appeal refused, [1998] S.C.C.A. No. 636
    Wilson, supra, at para 31

Disclosure Motion

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

Third party records can be obtained through an 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] OJ No 2439 (CA), per Doherty JA
  2. ↑ R v Hobbs, 2010 NSCA 32 (CanLII), 916 APR 327, per Beveridge JA, at para 28

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 (#1), 2016 BCCA 142 (CanLII), per curiam, at para 3
    R v Chudley (#2), 2015 BCCA 391 (CanLII), 125 WCB (2d) 129, per Donald JA, at para 9
    R v Hummel, 2003 YKCA 4 (CanLII), 175 CCC (3d) 1, per Donald J
  2. ↑ Chudley (#1), supra, at para 3
  3. ↑ Chudley (#2), supra, at para 9
    Hummel, supra, at para 24
  4. ↑ Chudley (#2), supra, at para 10
    R v Jahanrakhshan, 2013 BCCA 398 (CanLII), per Donald J, at para 5

Dissents

Specifying grounds of dissent

677 Where a judge of the court of appeal expresses an opinion dissenting from the judgment of the court, the judgment of the court shall specify any grounds in law on which the dissent, in whole or in part, is based.
R.S., 1985, c. C-46, s. 677; 1994, c. 44, s. 67.

– CCC (CanLII), (DOJ)

Note up: 677

Summary Dismissal

Summary determination of frivolous appeals

685 (1) Where it appears to the registrar that a notice of appeal, which purports to be on a ground of appeal that involves a question of law alone, does not show a substantial ground of appeal, the registrar may refer the appeal to the court of appeal for summary determination, and, where an appeal is referred under this section, the court of appeal may, if it considers that the appeal is frivolous or vexatious and can be determined without being adjourned for a full hearing, dismiss the appeal summarily, without calling on any person to attend the hearing or to appear for the respondent on the hearing.

Summary determination of appeals filed in error

(2) If it appears to the registrar that a notice of appeal should have been filed with another court, the registrar may refer the appeal to a judge of the court of appeal for summary determination, and the judge may dismiss the appeal summarily without calling on any person to attend the hearing or to appear for the respondent on the hearing.
R.S., 1985, c. C-46, s. 685; 2008, c. 18, s. 30.

– CCC (CanLII), (DOJ)

Note up: 685(1) and (2)

The Court of Appeal may dismiss without reasons where they are of the view, after reading written and oral submissions, that the appeal is frivolous or vexatious.[1]

The court may further order that the appellant be prohibited from filing any further appeals without the permission of a member of the court.[2]

  1. ↑ e.g. R v Olumide, 2017 ABCA 366 (CanLII), per curiam
  2. ↑ e.g. Olumide, ibid.


See Also

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