Appeal Procedure For Indictable Convictions

From Criminal Law Notebook

General Principles

See also: Appeal Procedure and Appeal Procedure For Summary Convictions

Source of Authority
The Court of Appeal is a court of inherent jurisdiction and is not recognized in common law. It is a "creature of statute" where its powers to hear cases and make orders must come from statute. [1]

Under s. 683, the Court of Appeal's main powers consist of the authority to:

  • order the production of any writing, exhibit or other thing connected with the proceedings;
  • "order any witness ... to attend and be examined before the court of appeal..." and admit the testimony as evidence;
  • order an inquiry and report to a special commissioner and to act on such a report; and,
  • amend an indictment

The court also has "ancillary" authority to control its own process. [2]

Notice of Appeal

Section 678 provides a requirement that anyone filing an appeal to the Court of Appeal must provide notice:

Notice of appeal
678. (1) An appellant who proposes to appeal to the court of appeal or to obtain the leave of that court to appeal shall give notice of appeal or notice of his application for leave to appeal in such manner and within such period as may be directed by rules of court.
Extension of time
(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
R.S., c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s. 16.


– CCC

Provincial rules of court set out the notice requirements for each appealing party as well as the time limit.[3]

Respondent Cannot Be Found

Service where respondent cannot be found
678.1 Where a respondent cannot be found after reasonable efforts have been made to serve the respondent with a notice of appeal or notice of an application for leave to appeal, service of the notice of appeal or the notice of the application for leave to appeal may be effected substitutionally in the manner and within the period directed by a judge of the court of appeal.
R.S., 1985, c. 27 (1st Supp.), s. 140; 1992, c. 1, s. 60(F).


– CCC

Rules may permit substituted service on notice, but when they do, they require a high standard of proof.[4]

  1. ↑ R v W.(G.), 1999 CanLII 668 (SCC), [1999] 3 SCR 597 at para 8 - power of CA to hear criminal appeals is statutory
    Kourtessis v M.N.R., 1993 CanLII 137 (SCC), [1993] 2 SCR 53, at pp. 69-70
    R v Meltzer, 1989 CanLII 68 (SCC), [1989] 1 SCR 1764, at p. 1773
  2. ↑ e.g. R v Zaharia (1986), 25 CCC (3d) 149 (Ont. C.A.)(*no CanLII links)
  3. ↑ E.g.
    NS: Rule 91.04 Civil Procedure Rules
  4. ↑ e.g. see R v Goodhart, 2012 ABQB 712 (CanLII) - substituted notice to accused quashed

Late Notice

Section 678(2) provides that where late notice is given:

678.
..
Extension of time
(2) The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given.
R.S., c. C-34, s. 607; 1972, c. 13, s. 53; 1974-75-76, c. 105, s. 16.


– CCC

An extension of time for filing and service of notice of appeal typically consideration of: [1]

(a) Whether the applicant showed a bona fide intention to appeal within the appeal period;
(b) Whether the applicant has acted with reasonable diligence or has reasonable excuse for delay; and
(c) Whether there is merit to the proposed appeal.

The principle of "finality" recognizes that due process has temporal limits and can be extinguished in time.[2]

Merit
The factor of merit to the appeal is not a "difficult threshold". It only requires that the appellant show a "realistic grounds which, if established, appear of sufficient substance to be capable of convincing a panel of the court to allow the appeal".[3] In New Brunswick, it must "demonstrate a serious chance of success".[4] While in Saskatchewan, it must have a "reasonably arguable ground"[5]

In determining if there is an "arguable issue", the issue should be "reasonably specific". The chambers judge should not consider "evidence nor arguments relevant to the outcome".[6]

Open-Ended List
The factors are not a fixed list.[7] Other suggested factors include:[8]

  1. whether the consequences of conviction were out of proportion to the penalty imposed;
  2. whether the Crown will be prejudiced; and
  3. whether the applicant has “taken the benefit of the judgment:”

The judge has no jurisdiction to correct service retroactively.[9]

If "service of the notice of appeal is out of time and thereafter an order is made extending the time for service, the notice of appeal must be re-served within the extended time".[10]

  1. ↑ R v Donaldson,2005 SKQB 479 (CanLII)
    R v Menear, 2002 CanLII 7570 (ON CA), [2002] O.J. No. 244. At para 20
    R v Spencer, 2015 NSCA 99 (CanLII)
    R v REM, 2011 NSCA 8 (CanLII)
  2. ↑ R v Letiec, 2015 ABCA 123 (CanLII) at para 7
    R v Canto, 2015 ABCA 306 (CanLII) at para 10
  3. ↑ Spencer at paras 12 to 13
  4. ↑ R v Stapleton (2000) 225 NBR (2d) 260
  5. ↑ R v Brittain, 2008 SKCA 104 (CanLII)
  6. ↑ Coughlan v Westminer, 1993 CanLII 3254 (NSCA) at para 11
  7. ↑ Donald at para 18
    Menear at para 20
    Blin v Boudreau, 2015 NSCA 78 (CanLII) at para 6 - re civil appeal extension, using same test
  8. ↑ Donald at para 18
  9. ↑ R v Bouchard, 2012 ONSC 7174 (CanLII), at para 10
    R v Holmes, 1982 CanLII 1977 (ON CA) c.f. R v Vinet, 2011 BCSC 1928 (CanLII)
  10. ↑ R v Holmes

Report by Trial Judge

The Court of Appeal may order provincial court judge to make a report relating to a case:

Report by judge
682. (1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or provincial court judge who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish it or him with a report on the case or on any matter relating to the case that is specified in the request.
...
R.S., 1985, c. C-46, s. 682; R.S., 1985, c. 27 (1st Supp.), ss. 143, 203; 1997, c. 18, s. 96.


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Section 682 is considered a "historical anachronism" from the days when full transcripts of decisions were rare.[1] It should only be permitted "where something has occurred which is not reflected on the record upon which opposing counsel cannot agree".[2]

It should be used "rarely" and has a tendency to do more to influence the Court of Appeal rather than assist the Court.[3]

  1. ↑ R v A.W.E., 1993 CanLII 65 (SCC), [1993] 3 SCR 155 at para 190
  2. ↑ A.W.E. at paras 191-192
  3. ↑ R v Dhillon, 2014 BCCA 182 (CanLII)

Amending Indictments or Informations

Under s. 683(1)(g), the court of appeal may amend an information or indictment subject to the appeal. In doing so, the court should consider:

It is section 683(1)(g), not section 686(1)(b)(i), that provides an appeal court with the authority to amend an indictment or information on appeal. In deciding whether to amend, an appeal court should consider:[1]

  1. the original indictment;
  2. the evidence at trial;
  3. the positions of the parties at trial;
  4. the instructions of the trial judge;
  5. the verdict of the jury; and
  6. the issues raised on appeal.
  1. ↑ R v Fraser, 2007 SKCA 113 (CanLII) at para 60

Consequently, the remedial provisions of s. 686 are also applicable when considering a defence appeal against conviction, unfitness or NCR verdict the court is guided by s. 686:

Powers
686(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

(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;

...
R.S., 1985, c. C-46, s. 686; R.S., 1985, c. 27 (1st Supp.), ss. 145, 203; 1991, c. 43, s. 9; 1997, c. 18, s. 98; 1999, c. 3, s. 52, c. 5, s. 26.


– CCC

Disclosure Motion

An accused may apply to the court of appeal for an order of disclosure, usually in the context of a fresh evidence application.

Third party records can be obtained through application under s. 683. These production orders apply the same law as at trial level.[1] The applicant must show:[2]

  1. There is a connection between the request for production and the fresh evidence he proposes to adduce in that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence; and
  2. There is a reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.
  1. ↑ R v Trotta, 2004 CanLII 60014 (ON CA), [2004] O.J. No. 2439 (C.A.)
  2. ↑ R v Hobbs, 2010 NSCA 32 (CanLII) at para 28

Re-opening an Appeal

The Court of Appeal has "inherent jurisdiction to re-open an appeal".[1] It is an "extraordinary power" that is to be "exercised rarely" and requires "the demonstration of a potential miscarriage of justice".[2]

Factors to consider include:[3]

  1. Finality is a primary but not always determinative factor.
  2. The interests of justice include finality and the risk of a miscarriage of justice.
  3. The applicant must make out a clear and compelling case to justify a re-opening.
  4. If the case has been heard on the merits the applicant must show that the court overlooked or misapprehended the evidence or an argument.
  5. The error must go to a significant aspect of the case.

There should be a demonstrated "potential miscarriage of justice".[4]

  1. ↑ R v Chudley, 2016 BCCA 142 (CanLII) at para 3
    R v Chudley, 2015 BCCA 391 (CanLII) at para 9
    R v Hummel, 2003 YKCA 4 (CanLII)
  2. ↑ R v Chudley, at para 3
  3. ↑ Chudley, at para 9
    Hummel, supra at para 24
  4. ↑ Chudley, at para 10
    R v Jahanrakhshan, 2013 BCCA 398 (CanLII) at para 5

Dissents

Specifying grounds of dissent
677 Where a judge of the court of appeal expresses an opinion dissenting from the judgment of the court, the judgment of the court shall specify any grounds in law on which the dissent, in whole or in part, is based.
R.S., 1985, c. C-46, s. 677; 1994, c. 44, s. 67.


– CCC

Summary Dismissal

Summary determination of frivolous appeals
685 (1) Where it appears to the registrar that a notice of appeal, which purports to be on a ground of appeal that involves a question of law alone, does not show a substantial ground of appeal, the registrar may refer the appeal to the court of appeal for summary determination, and, where an appeal is referred under this section, the court of appeal may, if it considers that the appeal is frivolous or vexatious and can be determined without being adjourned for a full hearing, dismiss the appeal summarily, without calling on any person to attend the hearing or to appear for the respondent on the hearing.
Summary determination of appeals filed in error
(2) If it appears to the registrar that a notice of appeal should have been filed with another court, the registrar may refer the appeal to a judge of the court of appeal for summary determination, and the judge may dismiss the appeal summarily without calling on any person to attend the hearing or to appear for the respondent on the hearing.
R.S., 1985, c. C-46, s. 685; 2008, c. 18, s. 30.


– CCC

The Court of Appeal may dismissed without reasons where they are of the view, after reading written and oral submissions, that the appeal is frivolous or vexatious.[1]

The court may further order that the appellant be prohibited from filing any further appeals without permission of a member of the court.[2]

  1. ↑ e.g. R v Olumide, 2017 ABCA 366 (CanLII)
  2. ↑ e.g. Olumide, ibid.
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