History of Appeal Provisions (Section 686)

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686

1999(2)

An Act to amend the Criminal Code, the CDA and the CCRA, S.C. 1999, c. 5 replaced s. 686(4) preamble with:

(4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may

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1999(1)

An Act to amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other Acts in consequence, S.C. 1999, c. 3 s. 52 replaced s. 686(5) with the following:

New trial under Part XIX

(5) Subject to subsection (5.01), if an appeal is taken in respect of proceedings under Part XIX and the court of appeal orders a new trial under this Part, the following provisions apply:

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It added s. 686(5.01):

New trial under Part XIX—Nunavut

(5.01) If an appeal is taken in respect of proceedings under Part XIX and the Court of Appeal of Nunavut orders a new trial under Part XXI, the following provisions apply:

(a) if the accused, in the notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;

(b) if the accused, in the notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, and without a further preliminary inquiry, be held before a judge, acting under Part XIX, other than a judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut directs that the new trial be held before the judge who tried the accused in the first instance;

(c) if the Court of Appeal of Nunavut orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and

(d) despite paragraph (a), if the conviction against which the accused appealed was for an indictable offence mentioned in section 553, the new trial shall be held before a judge acting under Part XIX, other than the judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut directs that the new trial be held before the judge who tried the accused in the first instance.

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It replaced s. 686(5.1) with the following:

Election if new trial a jury trial

(5.1) Subject to subsection (5.2), if a new trial ordered by the court of appeal is to be held before a court composed of a judge and jury,

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It added s. 686(5.2) as:

Election if new trial a jury trial—Nunavut

(5.2) If a new trial ordered by the Court of Appeal of Nunavut 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. The election shall be deemed to be a re-election within the meaning of subsection 561.1(1), and subsection 561.1(6) applies, with any modifications that the circumstances require, to the election.

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1997

Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 98, added s. 686(5.1) with the following:

(5.1) — Election where new trial a jury trial Where a new trial ordered by the court of appeal is to held before a court composed of a judge and jury,

(a) the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge and jury;

(b) the election shall be deemed to be a re-election within the meaning of subsection 561(5); and

(c) subsection 561(5) applies, with such modifications as the circumstances require, to the election.

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1991

An Act to Amend the Criminal Code and to Amend the National Defense Act & Young Offenders Act in Consequence thereof, S.C. 1991, c. 43, s. 9, Schedule 8 replaced s. 686(1) preamble with the following:

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

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It replaced s. 686(1)(d) and (e) with:

(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 in any manner deemed appropriate to the court of appeal in the circumstances.

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It replaced s. 686(6) and (7) with:

(6) Where a court of appeal allows an appeal against a verdict that the accused is unfit to stand trial, it shall, subject to subsection (7), order a new trial.

(7) Where the verdict that the accused is unfit to stand trial was returned after the close of the case for the prosecution, the court of appeal may, notwithstanding that the verdict is proper, if it is of the opinion that the accused should have been acquitted at the close of the case for the prosecution, allow the appeal, set aside the verdict and direct a judgment or verdict of acquittal to be entered.

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1985

In Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.), s. 145, it added s. 686(1)(d)(iv):

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

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It replaced s. 686(3) as follows:

(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and

(a) affirm the sentence passed by the trial court; or

(b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

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It replaced s. 686(4)(b)(ii) as follows:

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

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It replaced s. 686(5)(c) as follows:

(c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and

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Criminal Code, R.S.C. 1985, c. C-46

Section 613 was renumbered to s. 686.

1975

The Criminal Law Amendment, 1975, S.C. 1974-75-76, c. 93, s. 75 replaced s. 613(4)(b)(i) and (ii):

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law.

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Criminal Code, R.S.C. 1970, c. C-34

The restatement of the Criminal Code replaced s. 592 with s. 613 as follows:

613 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), or

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion as to the effect of a special verdict, and may order the conclusion to be recorded that appears to the court to be required by the verdict, and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court;

(d) may set aside a conviction and find the appellant not guilty on account of insanity and order the appellant to be kept in safe custody to await the pleasure of the lieutenant governor where it is of the opinion that, although the appellant committed the act or made the omission charged against him, he was insane at the time the act was committed or the omission was made, so that he was not criminally responsible for his conduct; or

(e) may set aside the conviction and find the appellant unfit, on account of insanity, to stand his trial and order the appellant to be kept in safe custody to await the pleasure of the lieutenant governor.

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered, or

(b) order a new trial.

(3) Where a court of appeal dismisses an appeal under subparagraph 1(b)(i), it may substitute the verdict that in its opinion should have been found and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or

(ii) order a new trial.

(5) Where an appeal is taken in respect of proceedings under Part XVI and the court of appeal orders a new trial under this Part, the following provisions apply, namely,

(a) if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;

(b) if the accused, in his notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, be held before a judge or magistrate, as the case may be, acting under Part XVI, other than a judge or magistrate who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or magistrate who tried the accused in the first instance;

(c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury it is not necessary, in any province of Canada, to prefer a bill of indictment before a grand jury in respect of the charge upon which the new trial was ordered, but it is sufficient if the new trial is commenced by an indictment in writing setting forth the offence with which the accused is charged and in respect of which the new trial was ordered; and

(d) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 483 and was made by a magistrate, the new trial shall be held before a magistrate acting under Part XVI, other than the magistrate who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the magistrate who tried the accused in the first instance.

(6) Where a court of appeal allows an appeal against a verdict that the accused is unfit, on account of insanity, to stand his trial it shall, subject to subsection (7), order a new trial.

(7) Where the verdict that the accused is unfit, on account of insanity, to stand his trial was returned after the close of the case for the prosecution, the court of appeal may, notwithstanding that the verdict is proper, if it is of opinion that the accused should have been acquitted at the close of the case for the prosecution, allow the appeal, set aside the verdict and direct a judgment or verdict of acquittal to be entered.

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

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1968-69

Criminal Law Amendment Act, S.C. 1968-69, c. 38, s. 60 replaced s. 592(1) with the following:

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal

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It added 592(1)(e):

(e) may set aside the conviction and find the appellant unfit, on account of insanity, to stand his trial and order the appellant to be kept in safe custody to await the pleasure of the Lieutenant-Governor.

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It also replaced 592(6) and added (7) and (8):

(6) Where a court of appeal allows an appeal against a verdict that the accused is unfit, on account of insanity, to stand his trial it shall, subject to subsection (7), order a new trial. (7) Where the verdict that the accused is unfit, on account of insanity, to stand his trial was returned after the close of the case for the prosecution, the court of appeal may, notwithstanding that the verdict is proper, if it is of opinion that the accused should have been acquitted at the close of the case for the prosecution, allow the appeal, set aside the verdict and direct a judgment or verdict of acquittal to be entered. (8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

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1960-61

An Act to Amend the Criminal Code, S.C. 1960-61, c. 43, s. 26 replaced s. 592(1)(d) with the following:

Insanity

(d) may set aside a conviction and find the appellant not guilty on account of insanity and order the appellant to be kept in safe custody to await the pleasure of the Lieutenant-Governor where it is of the opinion that, although the appellant committed the act or made the omission charged against him, he was insane at the time the act was committed or the omission was made, so that he was not criminally responsible for his conduct.

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It also added s. 592(5)(d):

(d) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 467 and was made by a magistrate, the new trial shall be held before a magistrate acting under Part XVI, other than the magistrate who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the magistrate who tried the accused in the first instance.

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Criminal Code, 1953-54 c. 51

Section 1013(5), 1014 and 1016 were redrafted as a single section found in s. 592:

592. (1) On the hearing of an appeal against a conviction, the court of appeal

Allowance of appeal against conviction

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice;

Dismissal

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

(ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), or

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (ii) of paragraph (a) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

Wrong conclusion on special verdict

(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion as to the effect of a special verdict, and may order the conclusion to be recorded that appears to the court to be required by the verdict, and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or

Insanity

(d) may quash a sentence and order the appellant to be kept in safe custody to await the pleasure of the Lieutenant-Governor where it is of the opinion that, although the appellant committed the act or made the omission charged against him, he was insane at the time the act was committed or the omission was made, so that he was not criminally responsible for his conduct.

(2) Where a court of appeal allows an appeal under paragraph (a) of subsection (1), it shall quash the conviction and

Order to be made

(a) direct a judgment or verdict of acquittal to be entered, or

Substituting verdict

(b) order a new trial.

(3) Where a court of appeal dismisses an appeal under subparagraph (i) of paragraph (b) of subsection (1), it may substitute the verdict that in its opinion should have been found and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.

(4) Where an appeal is from an acquittal the court of appeal may

Appeal from acquittal

(a) dismiss the appeal; or

Dismissal

(b) allow the appeal, set aside the verdict and

(i) enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or

(ii) order a new trial.

(5) Where an appeal is taken in respect of proceedings under Part XVI and the court of appeal orders a new trial under this Part, the following provisions apply, namely,

Allowance

(a) if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;

New trial Under Part XVI

(b) if the accused, in his notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, be held before a judge or magistrate, as the case may be, acting under Part XVI, other than a judge or magistrate who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or magistrate who tried the accused in the first instance; and

Additional powers

(c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury it is not necessary, in any province of Canada, to prefer a bill of indictment before a grand jury in respect of the charge upon which the new trial was ordered, but it is sufficient if the new trial is commenced by an indictment in writing setting forth the offence with which the accused is charged and in respect of which the new trial was ordered.

(6) Where a court of appeal exercises any of the powers conferred by subsection (2) or (4) it may make any order, in addition, that justice requires.

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From 1930

An Act to Amend the Criminal Code, S.C. 1930, c. 11, s. 28 replaced s. 1013(5) to read as follows:

1013...

How judgment is to be pronounced

(5) The procedure upon such an appeal and the powers of the court of appeal, including the power to grant a new trial, shall mutatis mutandis and so far as the same are applicable to appeals upon a question of law alone, be similar to the procedure prescribed and the powers given by sections one thousand and twelve to one thousand and twenty-one of this Act, inclusive, and the Rules of Court passed pursuant thereto, and to section five hundred and seventy-six of this Act.

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From 1927

The release of the Criminal Code, R.S.C. 1927, c. 36, kept s. 1013, 1014 and 1016 unchanged.

From 1923

An Act to Amend the Criminal Code, S.C. 1923, c. 41, s. 9 introduced the original version of s. 686, which was written as s. 1013, 1014, and 1015.

1013. ...

How judgment is to be pronounced

(5) Unless the court of appeal directs to the contrary in cases where, in the opinion of that court, the question is a question of law on which it would be convenient that separate judgments should be pronounced by the members of the court, the judgment of the court shall be pronounced by the president of the court or such other member of the court hearing the case as the president of the court directs, and no judgment with respect to the determination of any question shall be separately pronounced by any other member of the court.

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Allowance of appeal against conviction

1014 (1) On the hearing of any such appeal against conviction the court of appeal shall allow the appeal if it is of opinion—

(a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b) that the judgment of the trial court should be set aside on the ground of a wrong decision of any question of law; or

(c) that on any ground there was a miscarriage of justice; and

(d) in any other case shall dismiss the appeal.

Dismissal—Exception when no substantial wrong or miscarriage of justice

(2) The court may also dismiss the appeal if, notwithstanding that it is of opinion that on any of the grounds above mentioned the appeal might be decided in favour of the appellant, it is also of opinion that no substantial wrong or miscarriage of justice has actually occurred.

Powers of court if appeal is allowed—Quashing conviction

(3) Subject to the special provisions contained in the following sections of this Part, when the court of appeal allows an appeal against conviction it may—

(a) quash the conviction and direct a judgment and verdict of acquittal to be entered; or

(b) direct a new trial;

and in either case may make such other order as justice requires.

New trial

(4) When the court of appeal directs a new trial in the case of an appellant convicted, under the provisions of Part XVI or Part XVIII of this Act, of an indictable offence, if his consent or election was necessary to give jurisdiction to the magistrate or judge before whom he was tried, the new trial shall be before a jury if the appellant so requests in his notice of appeal or notice of application for leave to appeal, but otherwise shall, in the discretion of the court of appeal, be either before the proper magistrate or judge or before a jury.

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Court for new trial of appellant convicted on summary or speedy trial

1016 (1) If it appears to the court of appeal that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed on the appellant by the trial court or pass such sentence in substitution therefor as the court thinks proper, and as may be warranted in law by the verdict on the count or part of the indictment on which the court considers that the appellant has been properly convicted.

Powers of court in special cases—Multiple counts—Possibility of conviction for offence other than that charged

(2) Where an appellant has been convicted, of an offence and the jury or, as the case may be, the judge or magistrate, could on the indictment have found him guilty of some other offence, and on the actual finding it appears to the court of appeal that the jury, judge or magistrate must have been satisfied of facts which proved him guilty of that other offence, the court of appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed by the trial court as may be warranted in law for that other offence, not being a sentence of greater severity.

Wrong conclusion on special verdict

(3) Where on the conviction of the appellant the jury have found a special verdict, and the court of appeal considers that a wrong conclusion has been arrived at by the trial court as to the effect of that verdict, the court of appeal may, instead of allowing the appeal, order such conclusion to be recorded as appears to the court to be in law required by the verdict, and pass such sentence in substitution for the sentence passed by the trial court as may be warranted in law.

Insanity

(4) If on any appeal it appears to the court of appeal that, although the appellant was guilty of the act or omission charged against him, he was insane at the time the act was done or omission made so as not to be responsible according to law for his actions, the court may quash the sentence passed by the trial court and order the appellant to be kept in strict custody, in such place and such manner as to the court of appeal seems fit, until the pleasure of the lieutenant-governor of the province is known.

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