Right of Appeal of a Summary Conviction Appeal Decision

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General Principles

The Court of Appeal has no jurisdiction to hear summary conviction appeals without leave.

Leave for Appeal Under s. 675 and 676

Accused Appeal

675 (1) ...
Summary conviction appeals
(1.1) A person may appeal, pursuant to subsection (1) [conviction for indictable offence], with leave of the court of appeal or a judge of that court, to that court in respect of a summary conviction or a sentence passed with respect to a summary conviction as if the summary conviction had been a conviction in proceedings by indictment if

(a) there has not been an appeal with respect to the summary conviction;

(b) the summary conviction offence was tried with an indictable offence; and

(c) there is an appeal in respect of the indictable offence.

...
R.S., 1985, c. C-46, s. 675; 1991, c. 43, s. 9; 1995, c. 42, s. 73; 1997, c. 18, s. 92; 1999, c. 31, s. 68; 2002, c. 13, s. 64; 2011, c. 5, s. 2.

'Appeal by Crown

676
...
Summary conviction appeals
(1.1) The Attorney General or counsel instructed by the Attorney General may appeal, pursuant to subsection (1), with leave of the court of appeal or a judge of that court, to that court in respect of a verdict of acquittal in a summary offence proceeding or a sentence passed with respect to a summary conviction as if the summary offence proceeding was a proceeding by indictment if

(a) there has not been an appeal with respect to the summary conviction;

(b) the summary conviction offence was tried with an indictable offence; and

(c) there is an appeal in respect of the indictable offence.

...

Leave for Appeal Under s. 839

The applicant, either Crown or Defence, must apply for leave before appealing to the Court of Appeal under s. 839:

Appeals to Court of Appeal
Appeal on question of law
839. (1) Subject to subsection (1.1), an appeal to the court of appeal as defined in section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against

(a) a decision of a court in respect of an appeal under section 822; or

(b) a decision of an appeal court under section 834, except where that court is the court of appeal.

...
Sections applicable
(2) Sections 673 to 689 apply with such modifications as the circumstances require to an appeal under this section.
Costs
(3) Notwithstanding subsection (2), the court of appeal may make any order with respect to costs that it considers proper in relation to an appeal under this section.
Enforcement of decision
(4) The decision of the court of appeal may be enforced in the same manner as if it had been made by the summary conviction court before which the proceedings were originally heard and determined.
Right of Attorney General of Canada to appeal
(5) The Attorney General of Canada has the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has under this Part.
R.S., 1985, c. C-46, s. 839; R.S., 1985, c. 27 (1st Supp.), s. 183; 1999, c. 3, s. 57.

– CCC

Test of For Appeal

An appellant must have leave to appeal a summary conviction appeal decision. The appellant must establish the requirements of s. 839 of the Criminal Code:

1. the issue sought to be raised is a question of law alone;
2. the issue is important/the matter raises an arguable case of substance; and
3. is the question of sufficient importance to merit the attention of the full court.

Appeals of SCAC decisions are not meant as a second review of the provincial court level. They can only be reviews of errors of law from the SCAC judge.

Leave under s. 839(1)(a) should be granted sparingly. The main factors to consider are whether there "are the significance of the legal issues raised to the general administration of criminal justice" and "the merits of the proposed grounds of appeal"

Where the grounds are not strong, leave may still be granted if the "significance to the administration of justice beyond the facts of the case".

Where the general significance to the administration of justice is not strong, leave may still be granted where there is "clear error".

Standard of Review

Leave should only be granted sparingly and only in exceptional cases.

The appellant should demonstrate the exceptional circumstances that would justify a further review.

The fitness of sentence may be a factor to consider.

On summary conviction appeal, the reviewing judge must decide whether the decision of the trial judge could have been reasonably reached. The appeal should only be allowed if:

1. cannot be supported by the evidence; or
2. is clearly wrong in law; or
3. is clearly unreasonable; or
4. there has been a miscarriage of justice.

Importance of Issue

The case must of of sufficient importance to merit the attention of the court. There is a compelling reason for a second level of court to review. Reasons include raising matters that are significant to the administration of justice or development of law.

In considering the question of importance, the main consideration is "interests of justice".

Factors include:

• the merits of the appeal sought.
• the need to settle the law on the issue.
• whether an injustice would result from denying leave

Leave should be denied, even if there is an error, where there is no potential to significantly impact the law. However, leave should be warranted for areas of law that are not settled.

The appeal should not be granted for appeals concerning well-settled areas of law.

Appeal should not be granted where the issue is significant to the administration of justice, not merely "arguable" on the merits. There should be a "clear" error.