Appeals: Difference between revisions
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[[Fr:Appels]] | |||
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More precisely, an appeal is a review of an order. It is not a review of the reasons of a Court per se.<ref> | More precisely, an appeal is a review of an order. It is not a review of the reasons of a Court per se.<ref> | ||
{{CanLIIRPC|Teck Cominco Metals Ltd. v British Columbia|222hk|2009 BCCA 3 (CanLII)|264 BCAC 164}}{{perBCCA|Frankel JA}} (in Chambers){{atL|222hk|20}} ("Appeals are taken against orders, not reasons for judgment")<br> | |||
</ref> | </ref> | ||
The venue for the appeal depends on the venue and mode of the original proceedings.<ref>s. 813</ref> | The venue for the appeal depends on the venue and mode of the original proceedings.<ref>s. 813</ref> | ||
Matters that are elected indictably are appealed to the Court of Appeal while matters that are summary conviction offences are appealed to the Supreme Court of the province.<ref> | Matters that are elected indictably are appealed to the Court of Appeal while matters that are summary conviction offences are appealed to the Supreme Court of the province.<ref> | ||
{{CanLIIRP|Edmunds|1z1f5|1981 CanLII 173 (SCC)|[1981] 1 SCR 233}}{{perSCC-H|McIntyre J}}</ref> | |||
With some exception, the type of conviction does not determine the forum of appeal. | With some exception, the type of conviction does not determine the forum of appeal. | ||
If the accused is prosecuted indictably but convicted of a lesser summary offence, the appeal is to proceed as if by indictment.<ref> | If the accused is prosecuted indictably but convicted of a lesser summary offence, the appeal is to proceed as if by indictment.<ref> | ||
{{CanLIIRP|Yaworski|htvb8|1959 CanLII 494 (MB CA)|31 CR 55}}{{perMBCA|Tritschler JA}} </ref> | |||
; Purposes | ; Purposes | ||
The appeal process is supposed to protect against wrongful convictions and "enhance the fairness of the process" | An appeal is a process by which a court can review orders or judgments. It is not simply to review "reasons" of a judge per se.<ref> | ||
{{CanLIIR|Baasch|jxs0f|2023 NUCA 7 (CanLII)}}{{TheCourtNUCA}}{{atL|jxs0f|44}} | |||
R v Sheppard, 2002 SCC 26, para 4, [2002] 1 SCR 869<br> | |||
R v Elliott, 2014 ABCA 431, para 4, 13 Alta LR (6th) 407<br> | |||
Ratiopharm Inc v Pfizer Canada Inc, 2007 FCA 261, para 6, 60 CPR (4th) 165<Br> | |||
NB: s. 40 of of the ''Supreme Court Act'' provides right to leave on reasons alone, see {{CanLIIRPC|Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd|gm22q|2015 SCC 53 (CanLII)|[2015] 3 SCR 419}}{{atL|gm22q|13}} | |||
</ref> | |||
</ref> | |||
The appeal process is supposed to protect against wrongful convictions and "enhance the fairness of the process."<ref> | |||
{{CanLIIRP|RR|1z15s|2008 ONCA 497 (CanLII)|234 CCC (3d) 463}}{{perONCA-H|Doherty JA}}{{atL|1z15s|16}}<br> | |||
</ref> | </ref> | ||
One of the roles of appellate level courts is to "rein in overly elastic interpretation ... provided the courts stop short of judicial amendment" | One of the roles of appellate level courts is to "rein in overly elastic interpretation ... provided the courts stop short of judicial amendment."<ref> | ||
{{CanLIIRPC|Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)|1g990|2004 SCC 4 (CanLII)|[2004] 1 SCR 76}}{{perSCC| McLachlin CJ}}{{atL|1g990|122}} - dissenting in part<br> | |||
</ref> | </ref> | ||
| Line 30: | Line 41: | ||
[[File:Appeals_flowchart.png|thumb]] | [[File:Appeals_flowchart.png|thumb]] | ||
; Guilty Pleas | ; Guilty Pleas | ||
| Line 42: | Line 52: | ||
</ref> | </ref> | ||
It was closely modeled on the UK's Criminal Appeal Act, 1907 (U.K.), c. 23.<ref> | It was closely modeled on the UK's Criminal Appeal Act, 1907 (U.K.), c. 23.<ref> | ||
{{CanLIIRP|Meltzer|22klg|1986 CanLII 1172 (BC CA)|29 CCC (3d) 266}}{{Plurality}}{{atL|22klg|45}}<br> | |||
</ref> | </ref> | ||
| Line 52: | Line 62: | ||
===Sources of Right of Appeal=== | ===Sources of Right of Appeal=== | ||
The right of appeal arises only from statute.<ref> | The right of appeal arises only from statute.<ref> | ||
{{CanLIIRPC|Kourtessis v MNR|1fs46|1993 CanLII 137 (SCC)|[1993] 2 SCR 53}}{{perSCC|La Forest J}} ("Appeals are solely creatures of statute...there is no right of appeal on any matter unless provided for by the relevant legislature.")<br> | |||
</ref> | </ref> | ||
Where the matter is criminal in character, only the federal government has the power to create a right of appeal.<ref> | Where the matter is criminal in character, only the federal government has the power to create a right of appeal.<ref> | ||
{{CanLIIRPC|Knox Contracting Ltd v Canada|1fstz|1990 CanLII 71 (SCC)|[1990] 2 SCR 338}}{{perSCC-H|Sopinka J}} (dissenting on another issue)<br> | |||
</ref> | </ref> | ||
At common law, there are no means of appealing convictions or acquittals for indictable offences.<ref> | At common law, there are no means of appealing convictions or acquittals for indictable offences.<ref> | ||
{{CanLIIRP|Waugh|23jxr|2009 NBCA 23 (CanLII)|246 CCC (3d) 116}}{{perNBCA|Drapeau CJ}}{{atL|23jxr|15}}</ref> | |||
The right to appeal an indictable offence to the provincial Court of Appeal is derived from the Criminal Code in Part XXI. Section 672 explicitly provides: | The right to appeal an indictable offence to the provincial Court of Appeal is derived from the Criminal Code in Part XXI. Section 672 explicitly provides: | ||
{{ | {{quotation2| | ||
; Procedure abolished | ; Procedure abolished | ||
674 No proceedings other than those authorized by this Part {{AnnSec|XXI}} and Part XXVI {{AnnSec|XXVI}} shall be taken by way of appeal in proceedings in respect of indictable offences. | 674 No proceedings other than those authorized by this Part {{AnnSec|Part XXI}} and Part XXVI {{AnnSec|Part XXVI}} shall be taken by way of appeal in proceedings in respect of indictable offences. | ||
<br> | <br> | ||
R.S., c. C-34, s. 602. {{Annotation}} | R.S., c. C-34, s. 602. {{Annotation}} | ||
| | |{{CCCSec2|674}} | ||
|{{NoteUp|674}} | |||
}} | }} | ||
There are still the related common law remedies of [[Habeas Corpus|Habeas Corpus]], [[Mandamus, Certiorari, and Prohibition|Mandamus and Certiorari]]. | There are still the related common law remedies of [[Habeas Corpus|Habeas Corpus]], [[Mandamus, Certiorari, and Prohibition|Mandamus and Certiorari]]. | ||
However, the common law writ of error and writ of error coram nobis was removed by the Criminal Code in 1892.<ref> | However, the common law writ of error and writ of error coram nobis was removed by the Criminal Code in 1892.<ref> | ||
{{CanLIIRP|Reddick|1d9cc|1992 CanLII 1900 (BC CA)|13 BCAC 239}}{{perBCCA|Goldie JA}}<br> | |||
Ross v Prince Albert Correctional Centre | {{CanLIIRPC|Ross v Prince Albert Correctional Centre|1nt8c|1997 CanLII 11360 (SK QB)|151 Sask R 79}}{{perSKQB|Rothery J}}</ref> | ||
The statutory right of appeal exists for the accused on questions of fact and mixed fact/law. The crown's statutory right to appeal exists on questions of law alone. Appeals on sentence by either Crown or Accused is considered a separate basis of appeal. | The statutory right of appeal exists for the accused on questions of fact and mixed fact/law. The crown's statutory right to appeal exists on questions of law alone. Appeals on sentence by either Crown or Accused is considered a separate basis of appeal. | ||
| Line 81: | Line 92: | ||
; No Interlocutory Right of Appeal | ; No Interlocutory Right of Appeal | ||
There is a long-standing rule that the can be no interlocutory right of appeal of criminal matters as they are instruments of delay.<ref> | There is a long-standing rule that the can be no interlocutory right of appeal of criminal matters as they are instruments of delay.<ref> | ||
{{CanLIIRP|Mills|1cxmx|1986 CanLII 17 (SCC)|[1986] 1 SCR 863}}{{perSCC-H|McIntyre J}}{{atL|1cxmx|271}}<br> | |||
</ref> | </ref> | ||
The reason for this rule includes (1) the opportunity for "more opinions" does not necessarily serve the ends of justice and (2) "there should not be unnecessary delay in the final disposition of proceedings" of a "criminal character"; (3) the interminability of interlocutory appeals would increase costs of the proceedings; and (4) a post trial review permits a "fuller view" and "more complete picture of the evidence and the case."<ref> | |||
{{CanLIIRPC|Kourtessis v MNR|1fs46|1993 CanLII 137 (SCC)|[1993] 2 SCR 53}}{{perSCC|La Forest J}} | |||
</ref> | |||
There are limited exceptions for judicial review under a prerogative writ or in specific circumstances under the Evidence Act. | There are limited exceptions for judicial review under a prerogative writ or in specific circumstances under the Evidence Act. | ||
| Line 89: | Line 104: | ||
===Role of Appellate Justices=== | ===Role of Appellate Justices=== | ||
An appellate court's role includes the power to "rein in overly elastic interpretations" found within legislation so long as it falls should of "judicial amendments" | An appellate court's role includes the power to "rein in overly elastic interpretations" found within legislation so long as it falls should of "judicial amendments."<ref> | ||
{{CanLIIRP|SDL|h4fbv|2017 NSCA 58 (CanLII)|352 CCC (3d) 159}}{{perNSCA| MacDonald CJ}}{{atsL|h4fbv|9| to 10}}, {{atsL-np|h4fbv|17|}}<br> | |||
{{CanLIIRPC|Canadian Foundation for Children, Youth & the Law v Canada (Attorney General)|1g990|2004 SCC 4 (CanLII)|[2004] 1 SCR 76}}{{perSCC| McLachlin CJ}}{{atL|1g990|122}}<br> | |||
</ref> | </ref> | ||
The role also includes "providing guidance to trial judges on the application of discretionary rules" | The role also includes "providing guidance to trial judges on the application of discretionary rules."<ref> | ||
{{ibid1|SDL}}{{atL|h4fbv|11}}<br> | {{ibid1|SDL}}{{atL|h4fbv|11}}<br> | ||
Professor Stephen Waddams, in “Judicial Discretion” (2001) 1 O.U.C.L.J. 59{{atp|59}} (" the open-ended nature of a legal rule does not, in itself, present any particular reason to defer to a judge of first instance; on the contrary, the open-ended nature of a rule may be very good reason for the appellate court to give guidance and to settle uncertainties") | Professor Stephen Waddams, in “Judicial Discretion” (2001) 1 O.U.C.L.J. 59{{atp|59}} (" the open-ended nature of a legal rule does not, in itself, present any particular reason to defer to a judge of first instance; on the contrary, the open-ended nature of a rule may be very good reason for the appellate court to give guidance and to settle uncertainties") | ||
| Line 131: | Line 146: | ||
* [[Appeals to the Supreme Court of Canada]] | * [[Appeals to the Supreme Court of Canada]] | ||
* [[Appeals Relating to Young Persons]] | * [[Appeals Relating to Young Persons]] | ||
* [[History of Appeal Provisions]] | |||
{{reflist|2}} | {{reflist|2}} | ||
==Misc Terminology== | ==Misc Terminology== | ||
{{ | {{quotation2| | ||
; Interpretation | ; Interpretation | ||
; Definitions | ; Definitions | ||
673 In this Part,<br> | 673 In this Part {{AnnSec|Part XXI}},<br> | ||
"indictment" includes an information or charge in respect of which a person has been tried for an indictable offence under Part XIX; (acte d’accusation) | {{ellipsis}} | ||
registrar means the registrar or clerk of the court of appeal; (registraire) | '''"indictment"''' includes an information or charge in respect of which a person has been tried for an indictable offence under Part XIX {{AnnSec|Part XIX}}; (acte d’accusation)<br> | ||
<br> | '''"registrar"''' means the registrar or clerk of the court of appeal; (registraire) | ||
"trial court" means the court by which an accused was tried and includes a judge or a provincial court judge acting under Part XIX. (tribunal de première instance) | <br> | ||
{{ellipsis}} | |||
'''"trial court"''' means the court by which an accused was tried and includes a judge or a provincial court judge acting under Part XIX {{AnnSec|Part XIX}}. (tribunal de première instance) | |||
<br> | <br> | ||
R.S., {{LegHistory80s|1985, c. C-46}}, s. 673; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, ss. 138, 203, c. 23 (4th Supp.), s. 4, c. 42 (4th Supp.), s. 4; {{LegHistory90s|1992, c. 1}}, s. 58; {{LegHistory90s|1993, c. 45}}, s. 10; {{LegHistory90s|1995, c. 22}}, s. 5, c. 39, ss. 155, 190; {{LegHistory90s|1996, c. 19}}, s. 74; {{LegHistory90s|1999, c. 5}}, ss. 25, 51, c. 25, ss. 13, 31(Preamble); {{LegHistory00s|2002, c. 13}}, s. 63; {{LegHistory00s|2005, c. 22}}, ss. 38, 45; 2006, c. 14, s. 6; {{LegHistory10s|2013, c. 11}}, s. 2. | R.S., {{LegHistory80s|1985, c. C-46}}, s. 673; | ||
| | R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, ss. 138, 203, c. 23 (4th Supp.), s. 4, c. 42 (4th Supp.), s. 4; | ||
{{LegHistory90s|1992, c. 1}}, s. 58; | |||
{{LegHistory90s|1993, c. 45}}, s. 10; | |||
{{LegHistory90s|1995, c. 22}}, s. 5, c. 39, ss. 155, 190; | |||
{{LegHistory90s|1996, c. 19}}, s. 74; | |||
{{LegHistory90s|1999, c. 5}}, ss. 25, 51, c. 25, ss. 13, 31(Preamble); | |||
{{LegHistory00s|2002, c. 13}}, s. 63; | |||
{{LegHistory00s|2005, c. 22}}, ss. 38, 45; | |||
{{LegHistory00s|2006, c. 14}}, s. 6; | |||
{{LegHistory10s|2013, c. 11}}, s. 2. | |||
{{Annotation}} | |||
|{{CCCSec2|673}} | |||
|{{NoteUp|673}} | |||
}} | }} | ||
Latest revision as of 07:04, 23 July 2024
| This page was last substantively updated or reviewed July 2023. (Rev. # 95651) |
Introduction
An appeal is an application to review a matter that has been decided by a Court. The appeal is directed to the "higher" level of court above the level of the deciding court.
More precisely, an appeal is a review of an order. It is not a review of the reasons of a Court per se.[1]
The venue for the appeal depends on the venue and mode of the original proceedings.[2] Matters that are elected indictably are appealed to the Court of Appeal while matters that are summary conviction offences are appealed to the Supreme Court of the province.[3] With some exception, the type of conviction does not determine the forum of appeal.
If the accused is prosecuted indictably but convicted of a lesser summary offence, the appeal is to proceed as if by indictment.[4]
- Purposes
An appeal is a process by which a court can review orders or judgments. It is not simply to review "reasons" of a judge per se.[5] </ref>
The appeal process is supposed to protect against wrongful convictions and "enhance the fairness of the process."[6]
One of the roles of appellate level courts is to "rein in overly elastic interpretation ... provided the courts stop short of judicial amendment."[7]
The process, however, must be limited as there is a cost. The appeal process takes away from the timeliness and finality of a verdict. It is also a far from "ideal" way to resolve a criminal matter.[8]
- Guilty Pleas
Generally, a guilty plea to an offence includes a waiver of any right of appeal against conviction.[9]
- History
The current right of statutory was introduced in 1923 with Act to amend the Criminal Code, S.C. 1923, c. 41, s. 9, through the creation of what is now Part XXI and Part XXVI. [10] It was closely modeled on the UK's Criminal Appeal Act, 1907 (U.K.), c. 23.[11]
It was in 1930, the appeal provisions were amended to include Crown appeals on questions of law.[12]
- ↑
Teck Cominco Metals Ltd. v British Columbia, 2009 BCCA 3 (CanLII), 264 BCAC 164, per Frankel JA (in Chambers), at para 20 ("Appeals are taken against orders, not reasons for judgment")
- ↑ s. 813
- ↑ R v Edmunds, 1981 CanLII 173 (SCC), [1981] 1 SCR 233, per McIntyre J
- ↑ R v Yaworski, 1959 CanLII 494 (MB CA), 31 CR 55, per Tritschler JA
- ↑
R v Baasch, 2023 NUCA 7 (CanLII), per curiam, at para 44
R v Sheppard, 2002 SCC 26, para 4, [2002] 1 SCR 869
R v Elliott, 2014 ABCA 431, para 4, 13 Alta LR (6th) 407
Ratiopharm Inc v Pfizer Canada Inc, 2007 FCA 261, para 6, 60 CPR (4th) 165
NB: s. 40 of of the Supreme Court Act provides right to leave on reasons alone, see Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd, 2015 SCC 53 (CanLII), [2015] 3 SCR 419, at para 13 - ↑
R v RR, 2008 ONCA 497 (CanLII), 234 CCC (3d) 463, per Doherty JA, at para 16
- ↑
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ, at para 122 - dissenting in part
- ↑
RR, supra, at para 16
- ↑ See Guilty Plea
- ↑
Public Prosecution Service of Canada Deskbook at s. 3.2
- ↑
R v Meltzer, 1986 CanLII 1172 (BC CA), 29 CCC (3d) 266, at para 45
- ↑ Deskbook, , ibid.
Sources of Right of Appeal
The right of appeal arises only from statute.[1] Where the matter is criminal in character, only the federal government has the power to create a right of appeal.[2]
At common law, there are no means of appealing convictions or acquittals for indictable offences.[3] The right to appeal an indictable offence to the provincial Court of Appeal is derived from the Criminal Code in Part XXI. Section 672 explicitly provides:
- Procedure abolished
674 No proceedings other than those authorized by this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] and Part XXVI [Pt. XXVI – Extraordinary Remedies (ss. 774 to 784)] shall be taken by way of appeal in proceedings in respect of indictable offences.
R.S., c. C-34, s. 602.
[annotation(s) added]
There are still the related common law remedies of Habeas Corpus, Mandamus and Certiorari. However, the common law writ of error and writ of error coram nobis was removed by the Criminal Code in 1892.[4]
The statutory right of appeal exists for the accused on questions of fact and mixed fact/law. The crown's statutory right to appeal exists on questions of law alone. Appeals on sentence by either Crown or Accused is considered a separate basis of appeal.
Where there is no right to appeal granted by statute, the party seeking appeal must apply and be granted leave for appeal before the court can assess the merits of the appeal issues.
- No Interlocutory Right of Appeal
There is a long-standing rule that the can be no interlocutory right of appeal of criminal matters as they are instruments of delay.[5]
The reason for this rule includes (1) the opportunity for "more opinions" does not necessarily serve the ends of justice and (2) "there should not be unnecessary delay in the final disposition of proceedings" of a "criminal character"; (3) the interminability of interlocutory appeals would increase costs of the proceedings; and (4) a post trial review permits a "fuller view" and "more complete picture of the evidence and the case."[6]
There are limited exceptions for judicial review under a prerogative writ or in specific circumstances under the Evidence Act.
- ↑
Kourtessis v MNR, 1993 CanLII 137 (SCC), [1993] 2 SCR 53, per La Forest J ("Appeals are solely creatures of statute...there is no right of appeal on any matter unless provided for by the relevant legislature.")
- ↑
Knox Contracting Ltd v Canada, 1990 CanLII 71 (SCC), [1990] 2 SCR 338, per Sopinka J (dissenting on another issue)
- ↑ R v Waugh, 2009 NBCA 23 (CanLII), 246 CCC (3d) 116, per Drapeau CJ, at para 15
- ↑
R v Reddick, 1992 CanLII 1900 (BC CA), 13 BCAC 239, per Goldie JA
Ross v Prince Albert Correctional Centre, 1997 CanLII 11360 (SK QB), 151 Sask R 79, per Rothery J - ↑
R v Mills, 1986 CanLII 17 (SCC), [1986] 1 SCR 863, per McIntyre J, at para 271
- ↑ Kourtessis v MNR, 1993 CanLII 137 (SCC), [1993] 2 SCR 53, per La Forest J
Role of Appellate Justices
An appellate court's role includes the power to "rein in overly elastic interpretations" found within legislation so long as it falls should of "judicial amendments."[1]
The role also includes "providing guidance to trial judges on the application of discretionary rules."[2]
- ↑
R v SDL, 2017 NSCA 58 (CanLII), 352 CCC (3d) 159, per MacDonald CJ, at paras 9 to 10, 17
Canadian Foundation for Children, Youth & the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ, at para 122
- ↑
SDL, ibid., at para 11
Professor Stephen Waddams, in “Judicial Discretion” (2001) 1 O.U.C.L.J. 59, at p. 59 (" the open-ended nature of a legal rule does not, in itself, present any particular reason to defer to a judge of first instance; on the contrary, the open-ended nature of a rule may be very good reason for the appellate court to give guidance and to settle uncertainties")
Topics
- Right of Appeal by Accused of Verdicts or Sentences for Indictable Offences
- Right of Appeal by Crown of Verdicts or Sentences for Indictable Offences
- Right of Appeal of Verdicts or Sentences for Summary Offences
- Standard of Appellate Review
- Grounds of Appeal by Accused from Verdicts
- Unreasonable Verdict (686(1)(a)(i))
- Appeal of an Error of Law (686(1)(a)(ii))
- Miscarriage of Justice (686(1)(a)(iii))
- Misapprehension of Evidence
- Sufficiency of Reasons
- Appellate Powers to Dismiss Appeal (686(1)(b)(i-iv))
- Grounds of Appeal by Crown from Verdicts
- Appeal of an Error of Law (676(1)(a))
- Grounds of Appeal from Sentence
- Appeals Other Than Verdicts or Sentences
- Remedies
- Appeal Procedure
- Representation and Attendance on Appeal
- Appellate Evidence
- Interim Remedies Pending Appeal
- Right of Appeal of a Summary Conviction Appeal Decision
- Appeals to the Supreme Court of Canada
- Appeals Relating to Young Persons
- History of Appeal Provisions
Misc Terminology
- Interpretation
- Definitions
673 In this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)],
...
"indictment" includes an information or charge in respect of which a person has been tried for an indictable offence under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)]; (acte d’accusation)
"registrar" means the registrar or clerk of the court of appeal; (registraire)
...
"trial court" means the court by which an accused was tried and includes a judge or a provincial court judge acting under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)]. (tribunal de première instance)
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.
[annotation(s) added]