Representation and Attendance on Appeal

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Attendance on Appeal to Summary Conviction Appeal Court or Court of Appeal

Section 688 addresses the right of an appellant to attend personally. By function of s. 813, the section equally applies to a summary conviction appeal court as well.

Right of appellant to attend
688. (1) Subject to subsection (2), an appellant who is in custody is entitled, if he desires, to be present at the hearing of the appeal.

Appellant represented by counsel
(2) An appellant who is in custody and who is represented by counsel is not entitled to be present

(a) at the hearing of the appeal, where the appeal is on a ground involving a question of law alone,

(b) on an application for leave to appeal, or

(c) on any proceedings that are preliminary or incidental to an appeal,

unless rules of court provide that he is entitled to be present or the court of appeal or a judge thereof gives him leave to be present.

Manner of appearance
(2.1) In the case of an appellant who is in custody and who is entitled to be present at any proceedings on an appeal, the court may order that, instead of the appellant personally appearing,

(a) at an application for leave to appeal or at any proceedings that are preliminary or incidental to an appeal, the appellant appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the court; and

(b) at the hearing of the appeal, if the appellant has access to legal advice, he or she appear by means of closed-circuit television or any other means that permits the court and all parties to engage in simultaneous visual and oral communication.

Argument may be oral or in writing
(3) An appellant may present his case on appeal and his argument in writing instead of orally, and the court of appeal shall consider any case of argument so presented.

Sentence in absence of appellant
(4) A court of appeal may exercise its power to impose sentence notwithstanding that the appellant is not present.

R.S., 1985, c. C-46, s. 688; 2002, c. 13, s. 68.

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Attendance on Appeal to the Supreme Court of Canada

Right of appellant to attend
694.2 (1) Subject to subsection (2), an appellant who is in custody and who desires to be present at the hearing of the appeal before the Supreme Court of Canada is entitled to be present at it.

Appellant represented by counsel
(2) An appellant who is in custody and who is represented by counsel is not entitled to be present before the Supreme Court of Canada

(a) on an application for leave to appeal,

(b) on any proceedings that are preliminary or incidental to an appeal, or

(c) at the hearing of the appeal,

unless rules of court provide that entitlement or the Supreme Court of Canada or a judge thereof gives the appellant leave to be present.

R.S., 1985, c. 34 (3rd Supp.), s. 13.

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Court Appointed Counsel for Appeals

Section 684(1) provides:

Legal assistance for appellant
684(1) A court of appeal or a judge of that court may ... assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal 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.
...
R.S., 1985, c. C-46, s. 684; R.S., 1985, c. 34 (3rd Supp.), s. 9.

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The elements of s. 684 consist of:

1. Does the applicant have the means to hire counsel privately?
2. Has the applicant advanced arguable grounds of appeal?
3. Does the applicant have the ability to effectively advance his or her appeal without the assistance of counsel?

Burden
The onus is upon the applicant to prove all requirements of s. 684.

"Interests of Justice"

The "interests of justice" requirement is highly context dependent. It is an exercise of judicial discretion.

The “interests of justice” consists of many factors including:

• the points to be argued on appeal
• the complexity of the case;
• the appellant's capability to advance his appeal considering his level of education and his competency;
• whether the assistance of counsel is necessary in order to marshal the evidence and make the argument;
• the nature and extent of the penalty imposed;
• the merits of the appeal
• the court’s role to assist
• responsibility of Crown counsel to ensure that the applicant is treated fairly.