Criminal Law Notebook

Appeals Other Than Verdicts or Sentences

This page was last substantively updated or reviewed January 2019. (Rev. # 95932)

Introduction

Interlocutory Orders

As appeals are only available by statute, there is no authority to appeal an interlocutory order from either a provincial court.[1] Any appeal from an interlocutory order must occur at the end of the whole proceedings.[2]

  1. ↑ e.g. see R v Dobson, 2016 NBCA 18 (CanLII), 129 WCB (2d) 420, per curiam
    R v Anderson, 2017 BCCA 153 (CanLII), DTC 5065, per Frankel JA
  2. ↑ R v Primeau, 1995 CanLII 143 (SCC), [1995] 2 SCR 60, per Sopinka and Iacobucci JJ, at paras 11 to 12
    R v Scott, 2015 MBCA 80 (CanLII), 124 WCB (2d) 214, per Hamilton JA, at para 4

Crown Appeal of a Stay of Proceedings or Quashing of Charges

Right of Attorney General to appeal

676 (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;
(b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment;
(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment; or
(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.

[omitted (1.1), (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.
[Underline added]

– CCC (CanLII), (DOJ)

Note up: 676(1)

Stay for Unreasonable Delay

The decision to stay a proceeding for delay is a question of law and subject to review on the standard of correctness.[1]

  1. ↑ R v KN, 2018 BCCA 246 (CanLII), 362 CCC (3d) 288, per Fenlon JA, at para 13
    R v Widdifield, 2014 BCCA 170 (CanLII), 354 BCAC 237, per Frankel JA, at para 76
    R v Conway, 1989 CanLII 66 (SCC), [1989] 1 SCR 1659, per L'Heureux‑Dubé J at 1676
    See also Right to a Trial Within a Reasonable Time

Costs

A party may appeal a judgement of costs against them under s. 676.1 with leave of the court:

Appeal re costs

676.1 A party who is ordered to pay costs may, with leave of the court of appeal or a judge of a court of appeal, appeal the order or the amount of costs ordered.
1997, c. 18, s. 94.

– CCC (CanLII), (DOJ)

Note up: 676.1

In order to appeal a costs order against the Crown, the appellant must obtain leave from the court on the basis of having an "arguable case", an issue that is "important" and there is no "prejudice or bar" to hearing the appeal.[1]

  1. ↑ see R v Griffin, 2011 ABCA 197 (CanLII), 272 CCC (3d) 1, per curiam, at para 17

Prerogative Writs

See also: Mandamus, Certiorari, and Prohibition and Habeas Corpus
Appeal in mandamus, etc.

784 (1) An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.

Application of Part XXI

(2) Except as provided in this section, Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] applies, with such modifications as the circumstances require, to appeals under this section.
[omitted (3), (4), (5) and (6)]

R.S., 1985, c. C-46, s. 784; 1997, c. 18, s. 109.

– CCC (CanLII), (DOJ)

Note up: 784(1) and (2)

Section 784(1) creates a right of appeal from decisions "granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition."[1] This right of appeal is not to be interpreted in a "restrictive" manner and should should permit appeals "relating to the same issue" that is statutorily mandated.[2]

There is no right of appeal from a decision of a provincial-level court to a superior court level.[3]

  1. ↑ R v Ciarniello, 2006 CanLII 29633 (ON CA), 81 OR (3d) 561, per Sharpe JA, leave refused, [2006] SCCA No 424
  2. ↑ Ciarniello, ibid., at para 24
  3. ↑ R v Holynski, 2023 SKKB 40 (CanLII), at para 23

Habeas Corpus

784
[omitted (1) and (2)]

Refusal of application, and appeal

(3) Where an application for a writ of habeas corpus ad subjiciendum is refused by a judge of a court having jurisdiction therein, no application may again be made on the same grounds, whether to the same or to another court or judge, unless fresh evidence is adduced, but an appeal from that refusal shall lie to the court of appeal, and where on the appeal the application is refused a further appeal shall lie to the Supreme Court of Canada, with leave of that Court.

Where writ granted

(4) Where a writ of habeas corpus ad subjiciendum is granted by any judge, no appeal therefrom shall lie at the instance of any party including the Attorney General of the province concerned or the Attorney General of Canada.

Appeal from judgment on return of writ

(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the Supreme Court of Canada, with the leave of that Court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.

Hearing of appeal

(6) An appeal in habeas corpus matters shall be heard by the court to which the appeal is directed at an early date, whether in or out of the prescribed sessions of the court.
R.S., 1985, c. C-46, s. 784; 1997, c. 18, s. 109.

– CCC (CanLII), (DOJ)

Note up: 784(3), (4), (5), and (6)

Contempt of Court

See also: Contempt of Court (Offence)
Appeal

10 (1) Where a court, judge, justice or provincial court judge summarily convicts a person for a contempt of court committed in the face of the court and imposes punishment in respect thereof, that person may appeal

(a) from the conviction; or
(b) against the punishment imposed.
Idem

(2) Where a court or judge summarily convicts a person for a contempt of court not committed in the face of the court and punishment is imposed in respect thereof, that person may appeal

(a) from the conviction; or
(b) against the punishment imposed.
Part XXI applies

(3) An appeal under this section lies to the court of appeal of the province in which the proceedings take place, and, for the purposes of this section, the provisions of Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)] apply, with such modifications as the circumstances require.
R.S., 1985, c. C-46, s. 10; R.S., 1985, c. 27 (1st Supp.), s. 203.
[annotation(s) added]

– CEA (CanLII), (DOJ)

Note up: 10(1), (2) and (3)

Public Interest Privilege

See also: Public Interest Privilege
Appeal to court of appeal

37.1 (1) An appeal lies from a determination under any of subsections 37(4.1) to (6) [disclosure-related provisions]

(a) to the Federal Court of Appeal from a determination of the Federal Court; or
(b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province.
Limitation period for appeal

(2) An appeal under subsection (1) [appeal to court of appeal] shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances.
2001, c. 41, ss. 43, 141.

– CEA (CanLII), (DOJ)

Note up: 37.1(1) and (2)

Appeal Mid-Trial

An appeal on s. 37 findings can be done mid-trial where the trial judge orders disclosure. Otherwise, the appeal under s. 37.1 must be done after trial.[1]

Appeal to Supreme Court of Canada
Limitation periods for appeals to Supreme Court of Canada

37.2 Notwithstanding any other Act of Parliament,

(a) an application for leave to appeal to the Supreme Court of Canada from a judgment made under subsection 37.1(1) [appeal to court of appeal] shall be made within 10 days after the date of the judgment appealed from or within any further time that the court having jurisdiction to grant leave to appeal considers appropriate in the circumstances; and
(b) if leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the court that grants leave.

2001, c. 41, s. 43.

– CEA (CanLII), (DOJ)

Note up: 37.2

Stay of Proceedings or Quashing an Indictment

See also: Stay of Proceedings

Crown appeals of a stay of proceedings can be made under s. 676(1)(c) which states:[2]

676 (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

[omitted (a) and (b)]
(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment;
[omitted (d)]

[omitted (1.1), (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.

– CCC (CanLII), (DOJ)

Note up: 676(1)

A stay of proceeding that is done by a court other than the "trial court", such as by a judge before an election is made, is not appealable.[3]

A reversal of a discretionary stay is available where "the trial judge exercised this discretion unreasonably or erred in principle, which includes erring in law."[4]

  1. ↑ R v Tingley, 2015 NBCA 51 (CanLII), 1163 APR 1
  2. ↑ R v Pan, 2012 ONCA 581 (CanLII), per Laskin JA, at para 12
  3. ↑ R v Waugh, 2009 NBCA 23 (CanLII), 246 CCC (3d) 116, per Drapeau CJ
  4. ↑ Pan, supra at para 12

Appeal of Voir Dire

A voir dire hearing can happen at any point during a proceeding before the final decision on guilt. Parties may have a right to appeal the ruling of a voir dire, however, the proceeding will generally not be put on hold pending a ruling of the appeal.

A guilty plea after a voir dire will usually extinguish any right to appeal.[1]

As best practice, to preserve the right to appeal, the accused shall admit the facts alleged by the Crown and invite the judge to convict.[2]

  1. ↑ R v Chuhaniuk, 2010 BCCA 403 (CanLII), 261 CCC (3d) 486, per Frankel JA, at para 45
    R v Carter, 2003 BCCA 632 (CanLII), 190 BCAC 178, per Finch CJ
    R v Bowman, 2008 BCCA 410 (CanLII), 261 BCAC 285, per Lowry JA
    R v Webster, 2008 BCCA 458 (CanLII), 238 CCC (3d) 270, per Frankel JA
    cf. R v Liberatore, 2014 NSCA 109 (CanLII), 318 CCC (3d) 441, per Fichaud JA
  2. ↑ R v Duong, 2006 BCCA 325 (CanLII), 142 CRR (2d) 261, per Rowles JA, at para 8
    cf. Liberatore, supra

Appeal of a Charter Voir Dire

See also: Charter Applications

When reviewing a denial of a Charter application the reviewing court should:[1]

  1. review the "decision to ensure that the correct legal principles were stated and there was no misdirection on their application";
  2. review the "evidentiary foundation forming the basis of the judge's decision...to see if there was an error."
  3. review the "application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the legal test."

The statement of law and principles by the judge are reviewed as a question of law and is subject to the standard of review of correctness.[2] Facts in a Charter voir dire are to be reviewed as a question of law of a standard of "palpable and overriding error."[3] The application of the facts to the law are reviewed on a standard of "correctness."[4]

  1. ↑ R v Richard (DR), 2013 MBCA 105 (CanLII), 299 Man R (2d) 1, per Cameron JA, at para 48
  2. ↑ Richard, ibid., at para 48
  3. ↑ Richard, ibid., at para 48
  4. ↑ Richard, ibid., at para 48

Other Appeals

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