Appeals to the Supreme Court of Canada
| This page was last substantively updated or reviewed January 2019. (Rev. # 98779) |
General Principles
The Supreme Court of Canada is a statutory court and so jurisdiction to decide cases must be found in statute.
- Jurisdiction throughout Canada
35 The Court shall have and exercise an appellate, civil and criminal jurisdiction within and throughout Canada.
R.S., c. S-19, s. 35
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- Membership 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]
"As of Right" Appeals
Section 691, 692 and 693 states when appeals to the supreme court of Canada are guaranteed "as of right"--without the need for getting leave to appeal first.
- 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]
- Civil Matters
"As of Right" appeals also exist in civil matters through sections 35.1, 36, 54, and 53 of the SCA. As well as S. 34(3.1) of the Competition Act and Elections Act s. 523(1). However, in practice courts do not use the powers in s. 37 and 38 and instead still require leave.[2]
- ↑ R v Magoon, 2018 SCC 14 (CanLII), [2018] 1 SCR 309, per Abella and Moldaver JJ (9:0)
- ↑ e..g Canadian Pacivifc Ltd v Lowe (1999) 180 NSR (2d) 330 (CA)
Leave for Appeal
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).
Interlocutory Remedies
Section 65.1 permits an interlocutory stay of proceedings on application for leave.
- Stay of execution — application for leave to appeal
65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
- Additional power for court appealed from
(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.
- Modification
(3) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section.
1990, c. 8, s. 401994, c. 44, s. 101
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This provision generally will not be source of remedy for matters of detention and bail.[1] Generally, such issues are dealt with under s. 679 of the Code, which requires the court of appeal to consider any remedies.
- ↑ R. v. A. (J.), 2021 ONCA 93 (CanLII), <https://canlii.ca/t/jjx7f>