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Notice of Appeal for Indictable Convictions

From Criminal Law Notebook

General Principles

See also: Appeal Procedure for Indictable Convictions

Section 678 provides a requirement that anyone filing an appeal to the Court of Appeal must provide notice:

Notice of appeal

678 (1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court.

Extension of time

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
R.S., c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s. 16.

– CCC (CanLII), (DOJ)

Note up: 678(1) and (2)

Provincial rules of court set out the notice requirements for each appealing party such as the form of notice, the form of service, and the time limit of service.[1]

Form of Notice

The notice must always take the form of notice in writing. It will typically have to include details such as:

  • the charges being appealed
  • the venue in which the trial took place, such as the level of court, the presiding judge or justice, dates of the proceeding, and the result of trial;
  • the grounds of appeal, including the governing sections of the Code.

Whether service must be personally upon the accused or their counsel will vary between jurisdictions. Similarly, whether the Crown needs to be served at all or whether the Court will automatically serve notice upon the Crown on behalf of the appellant will vary from province to province.

Where the Respondent Cannot Be Found
Service where respondent cannot be found

678.1 Where a respondent cannot be found after reasonable efforts have been made to serve the respondent with a notice of appeal or notice of an application for leave to appeal, service of the notice of appeal or the notice of the application for leave to appeal may be effected substitutionally in the manner and within the period directed by a judge of the court of appeal.
R.S., 1985, c. 27 (1st Supp.), s. 140; 1992, c. 1, s. 60(F).

– CCC (CanLII), (DOJ)

Note up: 678.1

Rules may permit substituted service on notice, but when they do, they require a high standard of proof.[2]

  1. ↑ E.g.
    NS: Rule 91.04 Civil Procedure Rules
  2. ↑ e.g. see R v Goodhart, 2012 ABQB 712 (CanLII), per Wilson J - substituted notice to accused quashed

Late Notice

Section 678(2) provides that where late notice is given:

678
[omitted (1)]

Extension of time

(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
R.S., c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s. 16.

– CCC (CanLII), (DOJ)

Note up: 678(2)

An extension of time for filing and service of notice of appeal typically consideration of: [1]

(a) Whether the applicant showed a bona fide intention to appeal within the appeal period;
(b) Whether the applicant has acted with reasonable diligence or has reasonable excuse for delay; and
(c) Whether there is merit to the proposed appeal.

The principle of "finality" recognizes that due process has temporal limits and can be extinguished in time.[2]

An alternative list of considerations includes the following:[3]

(a) Whether the applicant formed a bona fide intention to appeal and communicated that intention to the opposing party within the prescribed time;
(b) Whether counsel moved diligently;
(c) Whether a proper explanation for the delay has been offered;
(d) The extent of the delay;
(e) Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
(f) The merits of the proposed appeal.
Merit

The factor of merit to the appeal is not a "difficult threshold". It only requires that the appellant show a "realistic grounds which, if established, appear of sufficient substance to be capable of convincing a panel of the court to allow the appeal."[4] In New Brunswick, it must "demonstrate a serious chance of success."[5] While in Saskatchewan, it must have a "reasonably arguable ground"[6]

In determining if there is an "arguable issue", the issue should be "reasonably specific". The chambers judge should not consider "evidence nor arguments relevant to the outcome."[7]

Open-Ended List

The factors are not a fixed list.[8] Other suggested factors include:[9]

  1. whether the consequences of conviction were out of proportion to the penalty imposed;
  2. whether the Crown will be prejudiced; and
  3. whether the applicant has “taken the benefit of the judgment:”

The judge has no jurisdiction to correct service retroactively.[10]

If "service of the notice of appeal is out of time and thereafter an order is made extending the time for service, the notice of appeal must be re-served within the extended time."[11]

  1. ↑ R v Donaldson, 2005 SKQB 479 (CanLII), 273 Sask R 12, per Currie J
    R v Menear, 2002 CanLII 7570 (ON CA), [2002] OJ No 244, per curiam, at para 20
    R v Spencer, 2015 NSCA 99 (CanLII), per Fichaud JA
    R v REM, 2011 NSCA 8 (CanLII), 947 APR 258, per Beveridge JA
  2. ↑ R v Letiec, 2015 ABCA 123 (CanLII), 322 CCC (3d) 306, per Wakeling JA, at para 7
    R v Canto, 2015 ABCA 306 (CanLII), 329 CCC (3d) 169, per Slatter JA, at para 10
  3. ↑ R v Chan, 2012 ABCA 250 (CanLII), 292 CCC (3d) 19, per Slatter JA, at para 24
  4. ↑ Spencer, supra, at paras 12 to 13
  5. ↑ R v Stapleton (2000) 225 NBR (2d) 260(*no CanLII links)
  6. ↑ R v Brittain, 2008 SKCA 104 (CanLII), 311 Sask R 175, per Richards JA
  7. ↑ Coughlan v Westminer, 1993 CanLII 3254 (NS CA), 349 APR 171, per Freeman JA, at para 11
  8. ↑ Donaldson, supra, at para 18
    Menear, supra, at para 20
    Blin v Boudreau, 2015 NSCA 78 (CanLII), per Bryson JA, at para 6- re civil appeal extension, using same test
  9. ↑ Donaldson, supra, at para 18
  10. ↑ R v Bouchard, 2012 ONSC 7174 (CanLII), per Pierce J, at para 10
    R v Holmes, 1982 CanLII 1977 (ON CA), 2 CCC (3d) 471, per Martin JA cf. R v Vinet, 2011 BCSC 1928 (CanLII), per Schultes J
  11. ↑ Holmes, supra

Extention of Time to Appeal

The provincial rules of court will generally govern the requirements for appeal, including time limitations.

The Court of Appeal has the discretion to extend the period of time to appeal. It is necessary that the extension be "in the interests of justice."[1]

The court may look at whether there was a bona fide intention to appeal within the time limitation and whether there was a reasonable excuse for the delay.[2]

The presence of communication with the opposing party of an intention to appeal will be a factor to consider in the exercise of discretion to extend the period of time to appeal.[3]

Crown Extention

In most cases, the Crown seeks an extension on the basis that the respondent is unavailable to be served with notice of appeal.[4]

  1. ↑ R v REM, 2011 NSCA 8 (CanLII), 947 APR 258, per Beveridge JA
  2. ↑ R v RA, 2020 NSCA 3 (CanLII), per Beveridge JA, at para 11
    REM, supra, at para 39 ("Both in Nova Scotia, and elsewhere, the criteria to be considered in the exercise of this discretion has been generally the same. The Court should consider such issues as whether the applicant has demonstrated he had a bona fide intention to appeal within the appeal period, a reasonable excuse for the delay, prejudice arising from the delay, and the merits of the proposed appeal.")
  3. ↑ RA, supra, at para 24
    R v Roberge, 2005 SCC 48 (CanLII), [2005] 2 SCR 469
  4. ↑ RA, supra, at para 13

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