Appeals to the Supreme Court of Canada
General Principles
Composition of Supreme Court of Canada
The Supreme Court of Canada is "general court of appeal for Canada".[1]
The court is composed of one Chief Justice and 8 puisne justices.[2]
Section 35 of the Supreme Court Act grants the Court has appellate criminal jurisdiction.[3]
Section 52 establishes the Supreme Court of Canada as the "ultimate" appeal of criminal jurisdiction that is "final and conclusive".[4]
Leave to appeal is permitted under s. 40 where the "public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it".
Appeals
- Appeal from conviction
691 (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada
- (a) on any question of law on which a judge of the court of appeal dissents; or
- (b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
- Appeal where acquittal set aside
(2) A person who is acquitted of an indictable offence other than by reason of a verdict of not criminally responsible on account of mental disorder and whose acquittal is set aside by the court of appeal may appeal to the Supreme Court of Canada
- (a) on any question of law on which a judge of the court of appeal dissents;
- (b) on any question of law, if the Court of Appeal enters a verdict of guilty against the person; or
- (c) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
R.S., 1985, c. C-46, s. 691; R.S., 1985, c. 34 (3rd Supp.), s. 10; 1991, c. 43, s. 9; 1997, c. 18, s. 99.
Where a conviction for a lesser offence is reversed at the Court of Appeal and a guilty verdict is entered, the accused may appeal the substituted verdict without leave. However, an appeal to substitute the verdict with an acquittal requires leave.[1]
- Appeal against affirmation of verdict of not criminally responsible on account of mental disorder
692 (1) A person who has been found not criminally responsible on account of mental disorder and
- (a) whose verdict is affirmed on that ground by the court of appeal, or
- (b) against whom a verdict of guilty is entered by the court of appeal under subparagraph 686(4)(b)(ii) [appeal from acquittal – enter guilty verdict],
may appeal to the Supreme Court of Canada.
- Appeal against affirmation of verdict of unfit to stand trial
(2) A person who is found unfit to stand trial and against whom that verdict is affirmed by the court of appeal may appeal to the Supreme Court of Canada.
- Grounds of appeal
(3) An appeal under subsection (1) [appeal to SCC against affirmation of verdict of not criminally responsible on account of mental disorder] or (2) [appeal to SCC against affirmation of verdict of unfit to stand trial] may be
- (a) on any question of law on which a judge of the court of appeal dissents; or
- (b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
R.S., 1985, c. C-46, s. 692; R.S., 1985, c. 34 (3rd Supp.), s. 11; 1991, c. 43, s. 9.
[annotation(s) added]
- Appeal by Attorney General
693 (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 [right of appeal of person convicted] or dismisses an appeal taken pursuant to paragraph 676(1)(a) [Crown right of appeal – types – acquittal/NCR], (b) [Crown right of appeal – types – quashing or refuses jurisdiction] or (c) [Crown right of appeal – types – stay proceedings] or subsection 676(3) [appeal against verdict of unfit to stand trial], the Attorney General may appeal to the Supreme Court of Canada
- (a) on any question of law on which a judge of the court of appeal dissents; or
- (b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
- Terms
(2) Where leave to appeal is granted under paragraph (1)(b) [Appeal by Attorney General – question of law with SCC leave], the Supreme Court of Canada may impose such terms as it sees fit.
R.S., 1985, c. C-46, s. 693; R.S., 1985, c. 27 (1st Supp.), s. 146, c. 34 (3rd Supp.), s. 12.
[annotation(s) added]
- Notice of appeal
694 No appeal lies to the Supreme Court of Canada unless notice of appeal in writing is served by the appellant on the respondent in accordance with the Supreme Court Act.
R.S., 1985, c. C-46, s. 694; R.S., 1985, c. 34 (3rd Supp.), s. 13.
- Order of Supreme Court of Canada
695 (1) The Supreme Court of Canada may, on an appeal under this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.
- Election if new trial
(2) Subject to subsection (3) [Supreme Court of Canada order new trial – re-elect judge-alone], if a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge. The election is deemed to be a re-election within the meaning of subsection 561(5) [right to re-elect from superior with prelim – notice and transmitting record] and subsections 561(5) to (7) [procedure on re-election] apply to it with any modifications that the circumstances require.
- Nunavut
(3) If a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury in Nunavut, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election is deemed to be a re-election within the meaning of subsection 561.1(6) [notice when no preliminary inquiry or preliminary inquiry completed — Nunavut] and subsections 561.1(6) to (9) [procedural requirements – Nunavut] apply to it with any modifications that the circumstances require.
R.S., 1985, c. C-46, s. 695; 1999, c. 5, s. 27; 2008, c. 18, s. 31.
[annotation(s) added]
- ↑ R v Magoon, 2018 SCC 14 (CanLII), per Abella and Moldaver JJ (9:0)
Leave for Appeal
- Appeals with leave of Supreme Court
40 (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.
- Application for leave
(2) An application for leave to appeal under this section shall be brought in accordance with paragraph 58(1)(a).
- Appeals in respect of offences
(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
- Extending time for allowing appeal
(4) Whenever the Court has granted leave to appeal, the Court or a judge may, notwithstanding anything in this Act, extend the time within which the appeal may be allowed.
R.S., 1985, c. S-26, s. 40; R.S., 1985, c. 34 (3rd Supp.), s. 3; 1990, c. 8, s. 37.– SCA
Extension of Time to Appeal
The Supreme Court has discretion to extend the time period in which to file an appeal. Considerations should include:[1]
- Whether the applicant formed a bona fide intention to appeal and communicated that intention to the opposing party within the prescribed time;
- Whether counsel moved diligently;
- Whether a proper explanation for the delay has been offered;
- The extent of the delay;
- Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
- The merits of the proposed appeal.
The Court has "traditionally adopted a generous approach in granting extensions of time."[2]
It has been previously suggested that only in "rare" circumstances will the Crown be permitted an extension given it's "vast" resources to serve notice of appeal.[3]
Legal Assistance for Accused
- Legal assistance for accused
694.1 (1) The Supreme Court of Canada or a judge thereof may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal to the Court or to proceedings preliminary or incidental to an appeal to the Court 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.
- Counsel fees and disbursements
(2) Where counsel is assigned pursuant to subsection (1) [legal assistance for accused on appeal to SCC] and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.
- Taxation of fees and disbursements
(3) Where subsection (2) [counsel fees and disbursements on appeal to SCC] applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the Registrar of the Supreme Court of Canada, and the Registrar may tax the disputed fees and disbursements.
R.S., 1985, c. 34 (3rd Supp.), s. 13; 1992, c. 1, s. 60(F).