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

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 95976)

General Principles

See also: Right of Appeal of Verdicts or Sentences for Summary Offences and Right of Appeal by Crown of Verdicts or Sentences for Indictable Offences

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) [right of appeal of person convicted — question of law] or (ii) [right of appeal of person convicted — question of fact or mixed (with leave)] that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal; or
[omitted (b)]

[omitted (1.1), (2), (2.1), (2.2), (2.3), (3) and (4)]
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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 675(1)

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).[1] The accused needs leave before applying on a question of fact or mixed fact and law.[2] An accused also requires leave to appeal a sentence[3], unless the sentence includes parole ineligibility of greater than 10 years for second degree murder in which case leave is not required.[4]

  1. ↑ See s. 675(1)(a) re question of law See s. 784(1) and (2) re writs
    R v Leroux, 2006 QCCA 1144 (CanLII), per Bich JA
  2. ↑ see s. 675(1)(a)
  3. ↑ see s. 675(1)(b)
  4. ↑ s. 675(2)

Appeal From Mental Disorder Verdict

675
[omitted (1), (2), (2.1), (2.2) and (2.3)]

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) [right of appeal of person convicted — question of law], (ii) [right of appeal of person convicted — question of fact or mixed (with leave)] or (iii) [right of appeal of person convicted — any other ground (with leave)] and subject to the conditions described therein.
[omitted (4)]
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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 675(3)

Requirements of Leave

An accused appeal on questions of fact or mixed fact and law (s. 675(1)(a)(ii)) or an appeal on grounds other than questions of law (s. 675(1)(a)(iii)) require leave of the Court.

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.[1]

In practice, the process of applying for leave is sometimes largely ignored and only rarely ever refused.

Where leave is denied by a judge of the Court of Appeal, the accused may make application to have the leave reviewed by a full panel of the court of appeal:

Review of Denial of Leave to the Court of Appeal

675
[omitted (1), (1.1), (2), (2.1), (2.2), (2.3), (3)]

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) [accused right of appeal against sentence], 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 675(4)

Appeal of Sentences for Indictable Offences

What Constitutes a Sentence

Under s. 673, a sentence is defined as:

673 In this Part,
...
 "sentence" includes

(a) a declaration made under subsection 199(3) [warrant to search — gaming, lottery, etc. — disposal of property seized],
(b) an order made under subsection 109(1) [mandatory weapons prohibition order] or 110(1) [discretionary weapons prohibition order], section 161 [s. 161 prohibition order], subsection 164.2(1)[forfeiture of property on conviction for ss. 162.1, 163.1, 172.1 or 172.2] or 194(1) [damages], section 320.24 or 462.37 [order of forfeiture for proceeds of crime], subsection 491.1(2), 730(1) [order of discharge] or 737(2.1) [exception for hardship] or (3) [victim fine surcharge] or section 738 [restitution orders], 739 [restitution orders], 742.‍1 [conditional sentence orders], 742.‍3 [conditions of conditional sentence order], 743.‍6 [an order delaying parole eligibility], 745.‍4 [murder conviction - under 16 – substitute jury sentence] or 745.‍5 [murder conviction - under 16 – substitute jury ineligibility],
(c) a disposition made under section 731 [probation orders] or 732 [Intermittent Jail Sentence Orders] or subsection 732.2(3) [probation order – changes to order] or (5) [vary or cancel probation order on breach conviction], 742.4(3) [supervisor changing optional conditions – decision at hearing] or 742.6(9) [procedure on breach of condition – powers of court], 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; 2018, c. 16, s. 220, c. 21, s. 21; 2019, c. 25, s. 278; 2022, c. 17, s. 41.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 673

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

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.[2]

  1. ↑ s 675(4)
  2. ↑ R v W(G), 1999 CanLII 668 (SCC), [1999] 3 SCR 597, per Lamer CJ - consideration of sentence without appeal of sentence created an apprehension of bias

Accused Appeal of Sentence

An appeal of sentence is a separate form of appeal from an appeal of verdict.

The defence may appeal a 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

[omitted (a)]
(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.

[omitted (1.1), (2), (2.1), (2.2), (2.3), (3) and (4)]
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.

– CCC (CanLII), (DOJ)

Note up: 675(1)

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."[1]

  1. ↑ R v Hillier, 2016 NLCA 21 (CanLII), 377 Nfld. & PEIR 121, per Welsh JA, at para 7

Accused Appeal of Parole Ineligibility

Second Degree Murder

675
[omitted (1) and (1.1)]

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.
[omitted (2.1), (2.2), (2.3), (3) and (4)]
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.

– CCC (CanLII), (DOJ)

Note up: 675(2)

First or Second Degree Murder by Youth

675
[omitted (1), (1.1), (2) and (2.1)]

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.
[omitted (2.3), (3) and (4)]
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.

– CCC (CanLII), (DOJ)

Note up: 675(2.2)

Delayed Parole Order Under s. 743.6 or 745.51

675
[omitted (1), (1.1) and (2)]

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.
[omitted (2.2), (2.3), (3) and (4)]
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.

[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 675(2.1)

675
[omitted (1), (1.1), (2), (2.1) and (2.2)]

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.
[omitted (3) and (4)]
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.

[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 675(2.3)

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