Right of Appeal of Verdicts or Sentences for Summary Offences

From Criminal Law Notebook
This page was last substantively updated or reviewed November 2022. (Rev. # 95537)

Summary Offence Appeals

See also: Right of Appeal of Verdicts or Sentences for Indictable Offences

Part XXVII of the Code governs appeals from summary conviction offence trials.[1] Under this Part, there are two ways to appeal a summary conviction. First, an appeal can be made under s. 813 for which remedy can be provided under s. 822. Second, an appeal can be made under s. 830 for which a remedy can be provided under s. 834.[2] Section 839 authorizes the Court of Appeal to give leave on questions of law in relation to both avenues of appeal.[3]

Historically, summary appeals were heard through a de novo trial.[4]

Section 812 defines Summary Conviction Appeal Court.[5]

  1. ↑ R v Pomeroy, 2007 BCSC 142 (CanLII), 41 MVR (5th) 272, per Romilly J, at paras 25 to 39
  2. ↑ R v Mir, 2016 ONCA 795 (CanLII), per Simmons JA, at para 9
  3. ↑ Mir, ibid., at para 10
  4. ↑ see R v Century 21 Ramos Realty Inc, 1987 CanLII 171 (ON CA), 32 CCC (3d) 353, per curiam, at p. 178 for a summary of the history
  5. ↑ See Definition of Judicial Officers and Offices

Right of Appeal

A party may appeal a summary conviction offence either under s. 813 or 830.

Section 813 sets out grounds of appeal for both defence and crown:

Appeal by defendant, informant or Attorney General

813. Except where otherwise provided by law,

(a) the defendant in proceedings under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] may appeal to the appeal court
(i) from a conviction or order made against him,
(ii) against a sentence passed on him,
(iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and
(b) the informant, the Attorney General or his agent in proceedings under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] may appeal to the appeal court
(i) from an order that stays proceedings on an information or dismisses an information,
(ii) against a sentence passed on a defendant, or
(iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial,

and the Attorney General of Canada or his agent 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 or his agent has under this paragraph.
R.S., 1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991, c. 43, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 813

When dealing with appeals under s. 813, the provisions governing indictable appeals of ss. 683 to 689, with some exception, will apply.[1]

A summary conviction appeal judge must determine "whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt."[2]

Section 830 was added in 1985 to expand the grounds of appeal beyond those set in s. 813 including adding appeals for "refusal or failure to exercise jurisdiction, as well as clarifying grounds of appeal such as from quashing an information and stay of proceedings.

Section 830 sets out as follows:

Appeals

830 (1) A party to proceedings to which this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] applies or the Attorney General may appeal against a conviction, judgment, verdict of acquittal or verdict of not criminally responsible on account of mental disorder or of unfit to stand trial or other final order or determination of a summary conviction court on the ground that

(a) it is erroneous in point of law;
(b) it is in excess of jurisdiction; or
(c) it constitutes a refusal or failure to exercise jurisdiction.

[omitted (2), (3) and (4)]
R.S., 1985, c. C-46, s. 830; R.S., 1985, c. 27 (1st Supp.), s. 182; 1991, c. 43, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 830(1)

It is not permissible to appeal under both s. 813 and 830 at the same time. They are mutually exclusive options (see s. 836).

An appeal may be made from a joint statement of fact or trial transcript (s. 812, 829, 838).

"Final" order or determination

The section does not apply to "every decision made by a Judge in the course of a trial."[3]

The order or judgement contemplated by "order or determination" must be "final" in that it terminates or concludes the proceedings. It is not limited merely to orders of acquittal and can include orders quashing of an information.[4] As such, a quashing order of a summary offence information is to be appealed under s. 830 rather than a writ of mandamus.[5] But appeal does not lie against a decision refusing to order the quashing an information.[6]

  1. ↑ the exception exists for s. 683(3) and s. 686(5)
    R v Pomeroy, 2007 BCSC 142 (CanLII), 41 MVR (5th) 272, per Romilly J, at para 25
  2. ↑ Pomeroy, ibid., at para 26
  3. ↑ B & B Stone
  4. ↑ R v B & B Stone Ltd. (No. 2), 1977 CanLII 2093 (ON CA), 34 CCC (2d) 464 (Ont. C.A.), per Arnup JA, at p. 472-3 ("I would respectfully agree that an "order or determination" must be "final" in the sense that it brings to an end that particular proceeding, before an appeal will lie. But I am unable to agree that the order or determination must be final in the sense of "determining the issue raised in the information". This, in my view, is another way of saying that the order sought to be appealed must be in substance an acquittal, which could be pleaded in bar of any later charge, on a plea of autrefois acquit. An order quashing an information brings to an end the proceeding which that information began. Such an order is "final", and appealable by stated case.")
  5. ↑ B & B Stone
  6. ↑ B & B Stone
    R. v. Walsh, [1969] 1 C.C.C. 86, [1968] 2 O.R. 29, 3 C.R.N.S. 273; affirmed [1969] 1 C.C.C. 90n, [1969] 1 O.R. 142n
    R. v. Goldrick (1974), 17 C.C.C. (2d) 74, 25 C.R.N.S. 389
    R. v. Appleby (1974), 21 C.C.C.(2d) 282; 10 N.B.R.(2d) 162

Crown Appeal

The Crown can appeal under s.813(b):

Appeal by defendant, informant or Attorney General

813 Except where otherwise provided by law,

[omitted (a)]
(b) the informant, the Attorney General or his agent in proceedings under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] may appeal to the appeal court
(i) from an order that stays proceedings on an information or dismisses an information,
(ii) against a sentence passed on a defendant, or
(iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial,
and the Attorney General of Canada or his agent 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 or his agent has under this paragraph.


R.S., 1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991, c. 43, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 813

Generally, the Crown is not restricted on a summary conviction appeal to issues of law alone, but may also appeal on issues of mixed fact and law.[1]

Under s. 813(b)(i) the crown may only appeal "from an order that stays proceedings on an information or dismisses an information" on grounds involving questions of fact alone.[2]

The reference to "dismisses an information" includes acquittals, dismissal for want of prosecutions, [3] and quashing of information at plea.[4]

The Crown may appeal an order for "costs" as an error of law.[5]

  1. ↑ R v Helm, 2011 SKQB 32 (CanLII), 6 WWR 641, per Popescul J, at para 16 (" Accordingly, it is clear that the Crown is not restricted on summary conviction appeals to raising only questions of law but may also raise matters of fact and mixed fact and law.")
  2. ↑ R v Century 21 Ramos Realty Inc and Ramos, 1987 CanLII 171 (ON CA), 32 CCC (3d) 353, per curiam, at pp. 768-769
    R v Multitech Warehouse (Manitoba) Direct Inc, 1995 CanLII 6261 (MB CA), 100 CCC (3d) 153, per Scott JA, at p. 149
    R v Gilles and Ash (1990), 81 Nfld. & P.E.I. R.1 (Nfld. C.A.)(*no CanLII links) , at para 51
    R v Medicine Hat Greenhouses Ltd. and German, 1981 ABCA 114 (CanLII), 59 CCC (2d) 257, per Harradence JA, at para 30
  3. ↑ R v Allen, 1960 CanLII 453 (BC SC), 128 CCC 409, per Schultz J
  4. ↑ R v Moore, 1987 CanLII 6798 (ON CA), 38 CCC (3d) 471, per Martin JA
  5. ↑ R v Krueger, 2006 ABCA 63 (CanLII), 206 CCC (3d) 390, per O’Brien JA, at para 28

Defence Appeal

Under s. 813(a), an accused can appeal a summary conviction:

Appeal by defendant, informant or Attorney General

813 Except where otherwise provided by law,

(a) the defendant in proceedings under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] may appeal to the appeal court
(i) from a conviction or order made against him,
(ii) against a sentence passed on him,
(iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and
[omitted (b)]
and the Attorney General of Canada or his agent 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 or his agent has under this paragraph.

R.S., 1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991, c. 43, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 813

Appeal Right Under 813 Not Lost By Payment of Fine
Payment of fine not a waiver of appeal

820 (1) A person does not waive his right of appeal under section 813 [appeal by defendant, informant or Attorney General] by reason only that he pays the fine imposed on conviction, without in any way indicating an intention to appeal or reserving the right to appeal.

Presumption

(2) A conviction, order or sentence shall be deemed not to have been appealed against until the contrary is shown.

R.S., c. C-34, s. 753.

– CCC (CanLII), (DOJ)

Note up: 820(1)

Appeal of Sentences

See also: Right of Appeal of Verdicts or Sentences for Indictable Offences

The right of appeal of sentence for a summary offences exists in s. 813(a)(ii) and (b)(ii):

Appeal by defendant, informant or Attorney General

813 Except where otherwise provided by law,

(a) the defendant in proceedings under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] may appeal to the appeal court
[omitted (i)]
(ii) against a sentence passed on him, or
[omitted (iii)]
(b) the informant, the Attorney General or his agent in proceedings under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] may appeal to the appeal court
[omitted (i)]
(ii) against a sentence passed on a defendant, or
[omitted (iii)]
and the Attorney General of Canada or his agent 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 or his agent has under this paragraph.

R.S., 1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991, c. 43, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 813

"Sentence"
See also: Right of Appeal by Accused of Verdicts or Sentences for Indictable Offences

785 In this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)],
...
 "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) [mandatory weapons prohibition order], section 320.24 [mandatory prohibition order], subsection 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] or 742.‍3 [conditions of conditional sentence order],

(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],
(d) an order made under subsection 16(1)

of the Controlled Drugs and Substances Act, and

(e) an order made under subsection 94(1) of the Cannabis Act; (sentence, peine ou condamnation)

...
 R.S., 1985, c. C-46, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203; 1992, c. 1, s. 58; 1995, c. 22, s. 7, c. 39, s. 156; 1996, c. 19, s. 76; 1999, c. 25, s. 23(Preamble); 2002, c. 13, s. 78; 2006, c. 14, s. 7; 2013, c. 11, s. 4; 2018, c. 16, s. 223, c. 21, s. 26; 2019, c. 25, s. 314; 2022, c. 17, s. 51.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 785

Grounds of Summary Conviction Appeal

A summary conviction appeal judge cannot interfere with a trial judge's findings unless they were unreasonable or unsupported by evidence.[1]

  1. ↑ R v Smits, 2012 ONCA 524 (CanLII), 294 OAC 355, per Brown J, at para 67
    see R v Grosse, 1996 CanLII 6643 (ON CA), 29 OR (3d) 785, per curiam, at pp. 791-92

Summary Conviction Appeal to the Court of Appeal

Venue of Appeal

Certain provinces require that Summary Conviction appeals under s. 813 be undertaken within the venue specified in the Code:


Manitoba and Alberta

814 (1) In the Provinces of Manitoba and Alberta, an appeal under section 813 [appeal by defendant, informant or Attorney General] shall be heard at the sittings of the appeal court that is held nearest to the place where the cause of the proceedings arose, but the judge of the appeal court may, on the application of one of the parties, appoint another place for the hearing of the appeal.

Saskatchewan

(2) In the Province of Saskatchewan, an appeal under section 813 [appeal by defendant, informant or Attorney General] shall be heard at the sittings of the appeal court at the judicial centre nearest to the place where the adjudication was made, but the judge of the appeal court may, on the application of one of the parties, appoint another place for the hearing of the appeal.

British Columbia

(3) In the Province of British Columbia, an appeal under section 813 [appeal by defendant, informant or Attorney General] shall be heard at the sittings of the appeal court that is held nearest to the place where the adjudication was made, but the judge of the appeal court may, on the application of one of the parties, appoint another place for the hearing of the appeal.

Territories

(4) In Yukon, the Northwest Territories and Nunavut, an appeal under section 813 [appeal by defendant, informant or Attorney General] shall be heard at the place where the cause of the proceedings arose or at the place nearest to it where a court is appointed to be held.
R.S., 1985, c. C-46, s. 814; 1993, c. 28, s. 78; 2002, c. 7, s. 150.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 814(1), (2), (3), and (4)

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