Appeal Procedure For Summary Convictions
| This page was last substantively updated or reviewed January 2020. (Rev. # 95824) |
General Principles
- Procedure on Appeal
- Notification and transmission of conviction, etc.
821 (1) Where a notice of appeal has been given in accordance with the rules referred to in section 815 [Notice of summary appeal to court of appeal], the clerk of the appeal court shall notify the summary conviction court that made the conviction or order appealed from or imposed the sentence appealed against of the appeal and on receipt of the notification that summary conviction court shall transmit the conviction, order or order of dismissal and all other material in its possession in connection with the proceedings to the appeal court before the time when the appeal is to be heard, or within such further time as the appeal court may direct, and the material shall be kept by the clerk of the appeal court with the records of the appeal court.
- Saving
(2) An appeal shall not be dismissed by the appeal court by reason only that a person other than the appellant failed to comply with the provisions of this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] relating to appeals.
- Appellant to furnish transcript of evidence
(3) Where the evidence on a trial before a summary conviction court has been taken by a stenographer duly sworn or by a sound recording apparatus, the appellant shall, unless the appeal court otherwise orders or the rules referred to in section 815 [Notice of summary appeal to court of appeal] otherwise provide, cause a transcript thereof, certified by the stenographer or in accordance with subsection 540(6) [transcription of record taken by sound recording apparatus], as the case may be, to be furnished to the appeal court and the respondent for use on the appeal.
R.S., c. C-34, s. 754; 1972, c. 13, s. 67; 1974-75-76, c. 93, s. 93.
[annotation(s) added]
- No Writs Required on Summary Appeal
- No writ required
833 No writ of certiorari or other writ is required to remove any conviction, judgment, verdict or other final order or determination of a summary conviction court for the purpose of obtaining the judgment, determination or opinion of the appeal court.
R.S., 1985, c. C-46, s. 833; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
- Certified Copies
Depending on the specific provincial court rules, the record, including transcripts, charging and release documents, orders and reports should all be certified.[1]
- ↑ R v Avard, 2019 NSSC 161 (CanLII), per Rosinski J
Section 813 Appeals Vs Section 830 Appeals
- Applicable Rules for a Section 830 Appeal
- Appeals
830
[omitted (1)]
- Form of appeal
(2) An appeal under this section shall be based on a transcript of the proceedings appealed from unless the appellant files with the appeal court, within fifteen days of the filing of the notice of appeal, a statement of facts agreed to in writing by the respondent.
- Rules for appeals
(3) An appeal under this section shall be made within the period and in the manner directed by any applicable rules of court and where there are no such rules otherwise providing, a notice of appeal in writing shall be served on the respondent and a copy thereof, together with proof of service, shall be filed with the appeal court within thirty days after the date of the conviction, judgment or verdict of acquittal or other final order or determination that is the subject of the appeal.
[omitted (4)]
R.S., 1985, c. C-46, s. 830; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
- When Section 830 Appeals Not Available
- Appeal barred
837 Where it is provided by law that no appeal lies from a conviction or order, no appeal under section 830 [summary conviction appeal] lies from such a conviction or order.
R.S., 1985, c. C-46, s. 837; R.S., 1985, c. 27 (1st Supp.), s. 182.
- When Section 813 Appeals Not Available
- Appeal under section 830
836 Every person who appeals under section 830 [summary conviction appeal] from any conviction, judgment, verdict or other final order or determination in respect of which that person is entitled to an appeal under section 813 [appeal by defendant, informant or Attorney General] shall be taken to have abandoned all the person’s rights of appeal under section 813 [appeal by defendant, informant or Attorney General].
R.S., 1985, c. C-46, s. 836; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
- Application of Procedure Between Appeals
- Application
831 The provisions of sections 816 [release order for appellant], 817 [recognizance of prosecutor], 819 [application to fix date for hearing of appeal] and 825 [dismissal for failure to appeal or want of prosecution] apply, with such modifications as the circumstances require, in respect of an appeal under section 830 [summary conviction appeal], except that on receiving an application by the person having the custody of an appellant described in section 819 [application to fix date for hearing of appeal] to appoint a date for the hearing of the appeal, the appeal court shall, after giving the prosecutor a reasonable opportunity to be heard, give such directions as it thinks necessary for expediting the hearing of the appeal.
R.S., 1985, c. C-46, s. 831; R.S., 1985, c. 27 (1st Supp.), s. 182.
Notice of Appeal
- Notice of appeal
815 (1) An appellant who proposes to appeal to the appeal court shall give notice of appeal in such manner and within such period as may be directed by rules of court.
- Extension of time
(2) The appeal court or a judge thereof may extend the time within which notice of appeal may be given.
R.S., c. C-34, s. 750; 1972, c. 13, s. 66; 1974-75-76, c. 93, s. 89.
Setting Dates
- Application to fix date for hearing of appeal
819 (1) Where, in the case of an appellant who has been convicted by a summary conviction court and who is in custody pending the hearing of his appeal, the hearing of his appeal has not commenced within thirty days from the day on which notice of his appeal was given in accordance with the rules referred to in section 815 [Notice of summary appeal to court of appeal], the person having the custody of the appellant shall, forthwith on the expiration of those thirty days, apply to the appeal court to fix a date for the hearing of the appeal.
- Order fixing date
(2) On receiving an application under subsection (1) [application to fix date for hearing of appeal], the appeal court shall, after giving the prosecutor a reasonable opportunity to be heard, fix a date for the hearing of the appeal and give such directions as it thinks necessary for expediting the hearing of the appeal.
R.S., c. 2(2nd Supp.), s. 16; 1974-75-76, c. 93, s. 92.
Extension of Time
- Extension of time
838 The appeal court or a judge thereof may at any time extend any time period referred to in section 830 [summary conviction appeal], 831 [application of s. 816, 817, 819, 825 to s. 830 summary appeals] or 832 [appeal of summary appeal court – imposition of release order].
R.S., 1985, c. C-46, s. 838; R.S., 1985, c. 27 (1st Supp.), s. 182.
[annotation(s) added]
Adjournments
Enforcing Orders
- Enforcement of conviction or order by court of appeal
828 (1) A conviction or order made by the appeal court may be enforced
- (a) in the same manner as if it had been made by the summary conviction court; or
- (b) by process of the appeal court.
- Enforcement by justice
(2) Where an appeal taken against a conviction or order adjudging payment of a sum of money is dismissed, the summary conviction court that made the conviction or order or a justice for the same territorial division may issue a warrant of committal as if no appeal had been taken.
- Duty of clerk of court
(3) When a conviction or order that has been made by an appeal court is to be enforced by a justice, the clerk of the appeal court shall send to the justice the conviction or order and all writings relating to that conviction or order, except the notice of intention to appeal and any undertaking, release order or recognizance.
R.S., c. C-34, s. 760; 2019, c. 25, s. 326.
- Enforcement
835 (1) Where the appeal court renders its decision on an appeal, the summary conviction court from which the appeal was taken or a justice exercising the same jurisdiction has the same authority to enforce a conviction, order or determination that has been affirmed, modified or made by the appeal court as the summary conviction court would have had if no appeal had been taken.
- Idem
(2) An order of the appeal court may be enforced by its own process.
R.S., 1985, c. C-46, s. 835; R.S., 1985, c. 27 (1st Supp.), s. 182.
Dismissal of Appeal
- Dismissal for failure to appear or want of prosecution
825 The appeal court may, on proof that notice of an appeal has been given and that
- (a) the appellant has failed to comply with any order made under section 816 [release order for appellant] or 817 [recognizance of prosecutor] or with the conditions of any undertaking or recognizance given or entered into as prescribed in either of those sections, or
- (b) the appeal has not been proceeded with or has been abandoned,
order that the appeal be dismissed.
R.S., c. C-34, s. 757; R.S., c. 2(2nd Supp.), s. 18.
Costs
- To whom costs payable, and when
827 (1) Where the appeal court orders the appellant or respondent to pay costs, the order shall direct that the costs be paid to the clerk of the court, to be paid by him to the person entitled to them, and shall fix the period within which the costs shall be paid.
- Certificate of non-payment of costs
(2) Where costs are not paid in full within the period fixed for payment and the person who has been ordered to pay them has not been bound by a recognizance to pay them, the clerk of the court shall, on application by the person entitled to the costs, or by any person on his behalf, and on payment of any fee to which the clerk of the court is entitled, issue a certificate in Form 42 [forms] certifying that the costs or a part thereof, as the case may be, have not been paid.
- Committal
(3) A justice having jurisdiction in the territorial division in which a certificate has been issued under subsection (2) [certificate of non-payment of costs] may, on production of the certificate, by warrant in Form 26 [forms], commit the defaulter to imprisonment for a term not exceeding one month, unless the amount of the costs and, where the justice thinks fit so to order, the costs of the committal and of conveying the defaulter to prison are sooner paid.
R.S., c. C-34, s. 759.
[annotation(s) added]
Misc Provisions
- Certain sections applicable to appeals
822 (1) Where an appeal is taken under section 813 [appeal by defendant, informant or Attorney General] in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689 [certain powers of court of appeal], with the exception of subsections 683(3) [powers of court of appeal – other powers] and 686(5) [new trial under Part XIX], apply, with such modifications as the circumstances require.
- New trial
(2) Where an appeal court orders a new trial, it shall be held before a summary conviction court other than the court that tried the defendant in the first instance, unless the appeal court directs that the new trial be held before the summary conviction court that tried the accused in the first instance.
- Order of detention or release
(3) Where an appeal court orders a new trial, it may make such order for the release or detention of the appellant pending the trial as may be made by a justice pursuant to section 515 and the order may be enforced in the same manner as if it had been made by a justice under that section, and the provisions of Part XVI [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] apply with such modifications as the circumstances require to the order.
- Trial de novo
(4) Despite subsections (1) to (3) [provisions re procedure to s. 813 summary trial appeals], if an appeal is taken under section 813 [appeal by defendant, informant or Attorney General] and because of the condition of the record of the trial in the summary conviction court or for any other reason, the appeal court, on application of the defendant, the informant, the Attorney General or the Attorney General’s agent, is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding a trial de novo, the appeal court may order that the appeal shall be heard by way of trial de novo in accordance with any rules that may be made under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules], and for that purpose the provisions of sections 793 to 809 [provisions re conducting and disposing of summary conviction trial] apply, with any modifications that the circumstances require.
- Former evidence
(5) The appeal court may, for the purpose of hearing and determining an appeal under subsection (4) [Section 813 summary trial appeal – trial de novo], permit the evidence of any witness taken before the summary conviction court to be read if that evidence has been authenticated in accordance with section 540 [taking evidence by preliminary inquiry judge] and if
- (a) the appellant and respondent consent,
- (b) the appeal court is satisfied that the attendance of the witness cannot reasonably be obtained, or
- (c) by reason of the formal nature of the evidence or otherwise the court is satisfied that the opposite party will not be prejudiced,
and any evidence that is read under the authority of this subsection has the same force and effect as if the witness had given the evidence before the appeal court.
- Appeal against sentence
(6) Where an appeal is taken under subsection (4) [Section 813 summary trial appeal – trial de novo] against sentence, the appeal court shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against and may, on such evidence, if any, as it thinks fit to require or receive, by order,
- (a) dismiss the appeal, or
- (b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted,
and in making any order under paragraph (b), the appeal court may take into account any time spent in custody by the defendant as a result of the offence.
- General provisions re appeals
(7) The following provisions apply in respect of appeals under subsection (4) [Section 813 summary trial appeal – trial de novo]:
- (a) where an appeal is based on an objection to an information or any process, judgment shall not be given in favour of the appellant
- (i) for any alleged defect therein in substance or in form, or
- (ii) for any variance between the information or process and the evidence adduced at the trial,
unless it is shown
- (iii) that the objection was taken at the trial, and
- (iv) that an adjournment of the trial was refused notwithstanding that the variance referred to in subparagraph (ii) had deceived or misled the appellant; and
- (b) where an appeal is based on a defect in a conviction or an order, judgment shall not be given in favour of the appellant, but the court shall make an order curing the defect.
R.S., 1985, c. C-46, s. 822; 1991, c. 43, s. 9; 2002, c. 13, s. 83.
830
[omitted (1), (2) and (3)]
- Rights of Attorney General of Canada
(4) The Attorney General of Canada has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has under this section.
R.S., 1985, c. C-46, s. 830; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
Superior Court Rules re Summary Conviction Appeals
- NS: Civil Procedure Rules Rule 7 and 63
- ON: Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 Rules 40 to 49