Representation and Attendance on Appeal

From Criminal Law Notebook

Attendance on Appeal to Summary Conviction Appeal Court or Court of Appeal

Section 688 addresses the right of an appellant to attend personally. By function of s. 813, the section equally applies to a summary conviction appeal court as well.[1]

Right of appellant to attend

688 (1) Subject to subsection (2), an appellant who is in custody is entitled, if he desires, to be present at the hearing of the appeal.

Appellant represented by counsel

(2) An appellant who is in custody and who is represented by counsel is not entitled to be present

(a) at the hearing of the appeal, where the appeal is on a ground involving a question of law alone,
(b) on an application for leave to appeal, or
(c) on any proceedings that are preliminary or incidental to an appeal,

unless rules of court provide that he is entitled to be present or the court of appeal or a judge thereof gives him leave to be present.

Manner of appearance

(2.1) In the case of an appellant who is in custody and who is entitled to be present at any proceedings on an appeal, the court may order that, instead of the appellant appearing in person,

(a) at an application for leave to appeal or at any proceedings that are preliminary or incidental to an appeal, the appellant appear by audioconference or videoconference, if the technological means is satisfactory to the court; and
(b) at the hearing of the appeal, if the appellant has access to legal advice, they appear by closed-circuit television or videoconference.
Argument may be oral or in writing

(3) An appellant may present his case on appeal and his argument in writing instead of orally, and the court of appeal shall consider any case of argument so presented.

Sentence in absence of appellant

(4) A court of appeal may exercise its power to impose sentence notwithstanding that the appellant is not present.

R.S., 1985, c. C-46, s. 688; 2002, c. 13, s. 68; 2019, c. 25, s. 283; 2022, c. 17, s. 43(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 688(1), (2), (2.1), (3), and (4)


Telepresence

683
[omitted (1) and (2)]

Virtual presence of parties

(2.1) In proceedings under this section, the court of appeal may order that the presence of a party may be by any technological means satisfactory to the court that permits the court and the other party or parties to communicate simultaneously.
[omitted (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.

– CCC (CanLII), (DOJ)

Note up: 683(2.1)

Attendance on Appeal to the Supreme Court of Canada

Right of appellant to attend

694.2 (1) Subject to subsection (2) [appellant in custody represented by counsel not entitled to attend SCC], an appellant who is in custody and who desires to be present at the hearing of the appeal before the Supreme Court of Canada is entitled to be present at it.

Appellant represented by counsel

(2) An appellant who is in custody and who is represented by counsel is not entitled to be present before the Supreme Court of Canada

(a) on an application for leave to appeal,
(b) on any proceedings that are preliminary or incidental to an appeal, or
(c) at the hearing of the appeal,

unless rules of court provide that entitlement or the Supreme Court of Canada or a judge thereof gives the appellant leave to be present.

R.S., 1985, c. 34 (3rd Supp.), s. 13.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 694.2(1) and (2)

Court Appointed Counsel for Appeals

See also: Representation at Trial

Section 684(1) provides:

Legal assistance for appellant

684 (1) A court of appeal or a judge of that court may ... assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.
[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 684; R.S., 1985, c. 34 (3rd Supp.), s. 9.

– CCC (CanLII), (DOJ)

Note up: 684(1)

The elements of s. 684 consist of:[2]

  1. Does the applicant have the means to hire counsel privately?
  2. Has the applicant advanced arguable grounds of appeal?
  3. Does the applicant have the ability to effectively advance his or her appeal without the assistance of counsel?
Burden

The onus is upon the applicant to prove all requirements of s. 684.[3]

  1. ↑ R v Pomeroy, 2007 BCCA 142 (CanLII), 218 CCC (3d) 400, per Donald JA, at para 25 - sections 683 to 689 apply with some exception to SCAC
  2. ↑ R v McCullough, 2017 ONCA 315 (CanLII), per Lauwers JA, at para 7
    R v Staples, 2016 ONCA 392 (CanLII), 352 OAC 392, per Gilese JA, at para 34
  3. ↑ R v Abbey, 2013 ONCA 206 (CanLII), 115 OR (3d) 13, per Watt JA, at para 31
    McCullough, supra, at para 8

"Interests of Justice"

The "interests of justice" requirement is highly context dependent.[1] It is an exercise of judicial discretion.[2]

The “interests of justice” consists of many factors including:[3]

  • the points to be argued on appeal; are the points arguable?[4]
  • the complexity of the case based on "grounds of appeal, the length and content of the record, the legal principles involved, and their application to the facts"[5]
  • the appellant's capability to advance his appeal considering his level of education and his competency; Can he "effectively present his appeal without ... counsel" based on "ability to comprehend, communicate, and apply legal principles to the facts";[6]
  • whether the assistance of counsel is necessary in order to marshal the evidence and make the argument; [7]
  • whether court has capacity to decide appeal without assistance of counsel.[8]
  • the nature and extent of the penalty imposed; [9]
  • the merits of the appeal[10]
  • the court’s role to assist[11]
  • responsibility of Crown counsel to ensure that the applicant is treated fairly.[12]
Merits of the Case

There must be at minimum an "arguable" case.[13] An "arguable" case is not one that "will succeed". It is only one that is not "frivolous."[14]

  1. ↑ R v Abbey, 2013 ONCA 206 (CanLII), 303 OAC 335, per Watt JA, at para 29 (it is a "legal chameleon that takes its meaning from its surroundings")
  2. ↑ Abbey, ibid., at para 29 (it “contemplates a judicial discretion exercisable on a case-by-case basis”)
  3. ↑ R v Donald, 2008 BCCA 316 (CanLII), 258 BCAC 117, per Saunders JA, at paras 10 to 15
    R v Hoskins, 2012 BCCA 51 (CanLII), 315 BCAC 238, per Garson JA
    R v Assoun, 2002 NSCA 50 (CanLII), 53 WCB (2d) 267, per Cromwell JA
    R v Morton, 2010 NSCA 103 (CanLII), 943 APR 65, per MacDonald JA
    see E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, loose-leaf, 2nd ed., vol. 3 (Aurora: Canada Law Book, 2014) at s. 23:3035
    R v Bernardo, 1997 CanLII 2240 (ON CA), 121 CCC (3d) 123, per Doherty JA
    R v Leroux, 2014 SKCA 60 (CanLII), 438 Sask R 162, per Jackson JA, at para 29
  4. ↑ Donald, ibid.
    Hoskins, ibid.
    R v Martin, 2015 NSCA 82 (CanLII), per Farrar JA
  5. ↑ Donald, Hoskins, supra
    R v Miller, 2015 NSCA 19 (CanLII), per Fichaud JA
    Assou, supran
  6. ↑ Donald, supra
    Hoskins, supra
    Assoun, supra
    Miller, supra
    Leroux, supra, at para 30
    R v Pendergast, 2003 NLCA 66 (CanLII), 693 APR 13, per Rowe JA
  7. ↑ Donald, Hoskins
  8. ↑ Miller
    Martin
  9. ↑ Donald, supra
    Hoskins, supra
  10. ↑ Donald, supra
    Hoskins, supra
  11. ↑ Assoun, supra
  12. ↑ Morton, supra
    Miller, supra
    Martin, supra
  13. ↑ R v Bernardo, 1997 CanLII 2240 (ON CA), 121 CCC (3d) 123, per Doherty JA, at para 21
    R v Chappell, 2010 PECA 18 (CanLII), per McQuaid JA, at para 22
    R v Buckingham, 2004 PESCAD 21 (CanLII), 717 APR 300{perPECA|McQuaid JA}}, at paras 11 and 31
  14. ↑ Buckingham, ibid., at para 16

See Also

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