Right of Appeal of a Summary Conviction Appeal Decision

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95990)

General Principles

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

The Court of Appeal has no jurisdiction to hear summary conviction appeals without leave.

Leave for Appeal Under s. 676 by Defence

675
[omitted (1)]

Summary conviction appeals

(1.1) A person may appeal, pursuant to subsection (1) [right of appeal of person convicted], with leave of the court of appeal or a judge of that court, to that court in respect of a summary conviction or a sentence passed with respect to a summary conviction as if the summary conviction had been a conviction in proceedings by indictment if

(a) there has not been an appeal with respect to the summary conviction;
(b) the summary conviction offence was tried with an indictable offence; and
(c) there is an appeal in respect of the indictable offence.

[omitted (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(1.1)

Leave for Appeal Under s. 675 by Crown

676
[omitted (1)]

Summary conviction appeals

(1.1) The Attorney General or counsel instructed by the Attorney General may appeal, pursuant to subsection (1) [Crown right of appeal – types], with leave of the court of appeal or a judge of that court, to that court in respect of a verdict of acquittal in a summary offence proceeding or a sentence passed with respect to a summary conviction as if the summary offence proceeding was a proceeding by indictment if

(a) there has not been an appeal with respect to the summary conviction;
(b) the summary conviction offence was tried with an indictable offence; and
(c) there is an appeal in respect of the indictable offence.

[omitted (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.

– CCC (CanLII), (DOJ)

Note up: 676(1.1)

Leave for Appeal Under s. 839 by Crown or Defence

The applicant, either Crown or Defence, must apply for leave before appealing to the Court of Appeal under s. 839:

Appeals to Court of Appeal
Appeal on question of law

839 (1) Subject to subsection (1.1), an appeal to the court of appeal as defined in section 673 [Pt. XXI — appeals — definitions] may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against

(a) a decision of a court in respect of an appeal under section 822 [provision for indictable appeals apply to s. 813 summary trial appeals]; or
(b) a decision of an appeal court under section 834 [power of summary appeal court after hearing], except where that court is the court of appeal.

[omitted (1.1)]

Sections applicable

(2) Sections 673 to 689 [appeal of indictable offences] apply with such modifications as the circumstances require to an appeal under this section.

Costs

(3) Notwithstanding subsection (2) [appeal of summary appeal court – applicable appeal sections], the court of appeal may make any order with respect to costs that it considers proper in relation to an appeal under this section.

Enforcement of decision

(4) The decision of the court of appeal may be enforced in the same manner as if it had been made by the summary conviction court before which the proceedings were originally heard and determined.

Right of Attorney General of Canada to appeal

(5) 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 Part.
R.S., 1985, c. C-46, s. 839; R.S., 1985, c. 27 (1st Supp.), s. 183; 1999, c. 3, s. 57.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 839(1), (2), (3), (4), and (5)

Test for Appeal

An appellant must have leave to appeal a summary conviction appeal decision. The appellant must establish the requirements of s. 839 of the Criminal Code:[1]

  1. the issue sought to be raised is a question of law alone;
  2. the issue is important/the matter raises an arguable case of substance; and
  3. is the question of sufficient importance to merit the attention of the full court.

Appeals of SCAC decisions are not meant as a second review of the provincial court level. They can only be reviews of errors of law from the SCAC judge.[2]

Leave under s. 839(1)(a) should be granted sparingly and "discouraged in absence of some compelling reason". The main factors to consider are whether there "are the significance of the legal issues raised to the general administration of criminal justice" and "the merits of the proposed grounds of appeal"[3]

Where the grounds are not strong, leave may still be granted if the "significance to the administration of justice beyond the facts of the case."[4]

Where the general significance to the administration of justice is not strong, leave may still be granted where there is "clear error."[5]

  1. ↑ R v Meikle, 2010 BCCA 337 (CanLII), DTC 5140, per Saunders JA
    R v Brunner, 1996 CanLII 3308 (BCCA), [1996] BCJ No 628 (CA), per Hinds JA, at para 3
    R v Bryan, 2004 BCCA 140 (CanLII), 236 DLR (4th) 340, per Smith JA, at para 14
    R v Parmar, 2005 BCCA 187 (CanLII), 195 CCC (3d) 112, per Thackray JA, at paras 3 to 10
    R v Schalla (K.T.), 2007 MBCA 104 (CanLII), 220 Man.R. (2d) 69, per Freedman JA, at para 1
    R v Langlois (D.J.), 2008 MBCA 72 (CanLII), 228 Man.R. (2d) 256, per Chartier JA
    R v Jacob, 2012 MBCA 19 (CanLII), 280 Man R (2d) 6, per Beard JA
    R v RWM, 2011 MBCA 74 (CanLII), 270 Man R (2d) 29, per Freedman JA, at paras 23 to 26
    R v Dickson, 2012 MBCA 2 (CanLII), 275 Man R (2d) 38, per Scott CJ
    R v Rowe, 2013 ONCA 311 (CanLII), per curiam, at para 4
    R v Newfoundland Recycling Ltd., 2009 NLCA 28 (CanLII), 875 APR 153, per Rowe JA
    R v Panko, 2010 ONCA 660 (CanLII), 276 OAC 49, per curiam, at para 6
    R v Tibu, 2016 ABCA 97 (CanLII), AJ No 329, per Schutz JA, at paras 6 to 7
    R v Bennett, 2004 ABCA 116 (CanLII), 354 AR 6, per O’Leary JA, at paras 9 to 10
    R v Edmonton, 2013 ABCA 318 (CanLII), 561 AR 25, per Cote JA, at para 31
    R v Dufault, 2014 ABCA 271 (CanLII), 68 MVR (6th) 219, per Veldhuis J, at para 13
  2. ↑ R v RR, 2008 ONCA 497 (CanLII), 90 OR (3d) 641, per Doherty JA, at para 24
    R v Chatur, 2012 BCCA 163 (CanLII), 320 BCAC 85, per Smith JA, at para 17
  3. ↑ RR, supra, at paras 30 and 1z15s37
    Tibu, supra at para 9
    Dufault, supra, at para 14 ("Applications for leave pursuant to s 839 of the Criminal Code should be granted sparingly and with good reason. ... Here the granting of leave would bring about a second-level appeal, which is to be discouraged in the absence of some compelling reason to conclude otherwise.")
  4. ↑ R v Mayrhofer-Lima, 2017 ONCA 949 (CanLII), per curiam, at para 8
  5. ↑ RR, supra, at para 24
    Mayrhofer-Lima, supra, at para 8

Standard of Review

Leave should only be granted sparingly and only in exceptional cases.[1]

The appellant should demonstrate the exceptional circumstances that would justify a further review.[2]

The fitness of sentence may be a factor to consider.[3]

On summary conviction appeal, the reviewing judge must decide whether the decision of the trial judge could have been reasonably reached. The appeal should only be allowed if:[4]

  1. cannot be supported by the evidence; or
  2. is clearly wrong in law; or
  3. is clearly unreasonable; or
  4. there has been a miscarriage of justice.
  1. ↑ fxpqk, per Farrar JA, at para 21
    R v RR, 2008 ONCA 497 (CanLII), 90 OR (3d) 641, per Doherty JA, at paras 25, 37
    R v Chatur, 2012 BCCA 163 (CanLII), 320 BCAC 85, per Smith JA, at para 18
    R v Paterson, 2009 ONCA 331 (CanLII), per curiam, at para 1
  2. ↑ Pottie, supra, at para 21
    RR, supra, at para 27
    R v Dickson, 2012 MBCA 2 (CanLII), 275 Man R (2d) 38, per Scott CJ, at para 14
    R v RWM, 2011 MBCA 74 (CanLII), 270 Man R (2d) 29, per Freedman JA, at para 32
  3. ↑ Chatur, supra, at para 19
    R v Im, 2009 ONCA 101 (CanLII), 242 CCC (3d) 77, per Epstein JA, at para 22
  4. ↑ R v Kumar, 2016 ONSC 7928 (CanLII), per Bielby J, at para 16
    R v Mason, 2013 ONSC 478 (CanLII), per Fragomeni J, at para 49

Importance of Issue

The case must be of sufficient importance to merit the attention of the court. There is a compelling reason for a second level of court to review. Reasons include raising matters that are significant to the administration of justice or development of law.[1]

In considering the question of importance, the main consideration is "interests of justice". [2]

Factors include:

  • the merits of the appeal sought.[3]
  • the need to settle the law on the issue.[4]
  • whether an injustice would result from denying leave[5]

Leave should be denied, even if there is an error, where there is no potential to significantly impact the law.[6] However, leave should be warranted for areas of law that are not settled.[7]

The appeal should not be granted for appeals concerning well-settled areas of law.[8]

Appeal should not be granted where the issue is significant to the administration of justice, not merely "arguable" on the merits. There should be a "clear" error.[9]

  1. ↑ R v Denys (C.D.), 2009 MBCA 39 (CanLII), (2009) 240 Man.R. (2d) 13, per Freedman JA
    R v Chaluk, 1998 ABCA 253 (CanLII), 197 WAC 366, per Russell JA, at para 7
    R v Johnson, 2013 ABCA 322 (CanLII), per Rowbotham JA, at para 11
  2. ↑ R v Meikle, 2010 BCCA 337 (CanLII), DTC 5140, per Saunders JA
    R v Andrews, 2007 BCCA 597 (CanLII), 76 WCB (2d) 223, per Donald JA
  3. ↑ R v Bennett, 2004 ABCA 116 (CanLII), 354 AR 6, per O’Leary JA
  4. ↑ R v Edmonton, 2013 ABCA 318 (CanLII), 561 AR 25, per Côté JA, at para 31
  5. ↑ R v Toor, 2001 ABCA 88 (CanLII), 155 CCC (3d) 345, per Paperny JA, at para 8
  6. ↑ Toor, ibid., at para 8
  7. ↑ R v A(DC), 1999 ABCA 244 (CanLII), AJ No 937, per Picard JA
  8. ↑ R v Zaky, 2010 ABCA 95 (CanLII), per Paperny JA, at para 10
    R v Im, 2009 ONCA 101 (CanLII), 242 CCC (3d) 77, per Epstein JA, at para 17
    R v Hengeveld, 2010 ONCA 60 (CanLII), per curiam, at para 5
    R v RR, 2008 ONCA 497 (CanLII), 234 CCC (3d) 463, per Doherty JA, at para 31
  9. ↑ R v M(RW), 2011 MBCA 74 (CanLII), 270 Man R (2d) 29, per Freedman JA, at para 37
    RR, supra, at para 32
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