Canadian Criminal Procedure and Practice/Appeals

Introduction

An appeal is an application to review a matter that has been decided by a Court. The appeal is directed to the "higher" level of court above the level of the deciding court.

The venue for the appeal depends on the venue of the original proceedings. Matters that are elected indictably are appealed to the Court of Appeal while matters that are summary conviction offences are appealed to the Supreme Court of the province.

If the accused is prosecuted indictably but convicted of a lesser summary offence, the appeal is to proceed as if by indictment.

The Court of Appeal will assume that the election is summary unless indicated.

In reviewing a trial judge's decision, the decision should not be looked at in a piecemeal manner, but rather should be considered as a whole.

Trial judges are presumed to know the elementary principles of law.

Appeal by Offence

The manner of appeal depends on what type of offence was charged, whether it is a summary conviction offence or an indictable offence:

• Canadian Criminal Procedure and Practice/Appeals/Indictable Offences
• Canadian Criminal Procedure and Practice/Appeals/Summary Offences

Standard of Review

• Canadian Criminal Procedure and Practice/Appeals/Standard of Review

Jury Instruction

An appellate court should assess a jury charge functionally. It is not an idealized approach considering whether better instructions could have been given.

The reviewing judge should determine whether the accused, based on the review of the whole charge, has had a fair trial. It is not to look for minute errors.

The Court should consider whether the instructions had the ability to fulfil their purpose and not simply whether they diverted from a formula.

All defences that have an air of reality are to be put to the jury, even if not raised by counsel.

Remedial Powers of the Court of Appeal

Part XVIII of the Criminal Code addresses the power and procedure for appeals. Appeals of indictable offences are appealed to the provincial Court of Appeal.

The Crown can generally appeal where there is an error in law. The Crown has a limited appeal on the basis of questions of fact. This includes appeals for unreasonable verdict. However, the Crown cannot appeal on issues of credibility unless it amount to an error in law.

The Defence can appeal both issues of fact and law.(ss. 675 and 676)

Grounds for Interfering with Verdicts (The Curative Proviso)

The powers of the Court of Appeal to interfere with a verdict on a appeal are stated under s.686:

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;

(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),

(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, or

(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;

(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, 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

(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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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.

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Where a defence appeal is allowed the court may either order a new trial or enter a verdict of acquittal. (s.686(2))

The court has discretion to enter a verdict of acquittal where:

• the accused has already served part or all of a fit sentence
• where there is still sufficient evidence to support a conviction
• where it would be unfair to the accused to have another trial

Unreasonable Verdicts

Under s. 686(1)(a)(i), the defence may appeal a conviction where there was an "unreasonable or cannot be supported by the evidence".

A verdict that is unreasonable must be one where the judge "revealed he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached.

An error of the trial judge in finding an acquittal, once found, can only result in a new trial being ordered where the error had “a material bearing on the acquittal”

The appellate court may find a verdict is unreasonable where the trial judge has drawn an inference or made a finding of fact essential to the verdict that:

1. is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or
2. is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge

The applicable test for unreasonable verdict "requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze, and within the limits of appellate disadvantage, weigh the evidence." Or to put it another way: "whether on the whole of the evidence the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered"

A judge's decision should not be analysed by "dissecting them into small pieces and examining each piece in isolation".

The reasons should be read as a whole, and not held to a standard of perfection nor should it be the equivalent of jury instructions.

It is inappropriate to "simply plucking colloquial elements" from a trial judge's "thorough reasons" or to "cherry pick" infelicitous phrases.

A mere misstatement at "one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence."

Courts are given great deference when considering whether findings are supported by the evidence.

R. v. Biniaris, 2000 SCC 15 outlined the principles to be applied:

1. A court of appeal must not merely substitute its view for that of the jury but in applying the Yebes test is entitled to review, analyze and, within the limits of appellate disadvantage, weigh the evidence.
2. The test applies equally to a jury and a judge sitting alone. In the latter case, the review may be easier because the appellate court will be able to examine the reasons provided by the judge, which may reveal a flaw in the evaluation of the evidence. Such a deficiency in analysis may appear where a judge was not alive to an applicable legal principle or entered a verdict inconsistent with the factual conclusions reached.
3. A reviewing court must articulate the basis upon which it finds that the conclusions reached by a jury were unreasonable. A lurking doubt or vague unease based on the court’s review is not sufficient justification for a finding of unreasonableness but may trigger increased appellate scrutiny.
4. A jury does not provide reasons for its verdict. To justify a finding of unreasonableness regarding the verdict of a properly instructed jury, the appeal court will not be able to point to express deficiencies in analysis. It must fall back upon and articulate inferences drawn from a review of the evidence to support its conclusion that the jury, in arriving at its guilty verdict, could not have been acting judicially.
5. Jury instructions attempt to convey accumulated judicial experience to the jury. Still, in certain rare cases, the totality of the evidence and the peculiar factual circumstances will lead an experienced, legally trained, jurist to conclude that the fact-finding exercise applied at trial must have been flawed in light of the unreasonable results it produced.
6. Acting judicially, in this context, means not only acting dispassionately in applying the law and adjudicating on the basis of the law and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. The reviewing court’s assessment must, in other words, proceed through “the lens of judicial experience” to identify and articulate, as precisely as possible, those features of the case which suggest that the verdict was unreasonable. There may be several causes of concern, none of which, in isolation, might have required a particular warning to the jury.

A verdict may also be unreasonable if the trial judge draws an inference or makes an essential finding of fact that:

1. is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or
2. is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.

Misapprehension of Evidence
Appeal for misapprehension of evidence requires that the error "play an essential part in the reasoning process resulting in a conviction".

See also Canadian Criminal Procedure and Practice/Trials/Verdicts

Insufficiency of Reasons

The judge is required to give reasons for his or her decision on verdict.

The goal of giving reasons is to "show why the judge reached his or her conclusion". The reasons are to be examined in a functional test. "The requirement of reasons is tied to their purpose and the purpose varies with the context" The functional and substantive manner means taking the reasons, "as a whole, in the context of the evidence, arguments, and the live issues at trial, with an appreciation of the purposes or functions for which reasons are given." There must be a logical connection between the verdict and the reasons.

There is no obligation upon judges to address every argument made by counsel. Nor must the judge articulate consideration of every part of the evidence.

The Criminal Code specifically mandates judges to give reasons on certain circumstances, such as when determining the admissibility of a complainant's prior sexual history ; ordering the production of prior personal information (s. 278.8(1)); and when imposing a sentence .

The reason must "sufficiently intelligible" to permit appellate review.

A verdict must be based exclusively on admissible evidence heard at trial. If a trial judge has misapprehended the evidence, including resorting to material not before him or her, and the errors "play an essential part in the reasoning process resulting in a conviction then … the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict".

When considering sufficiency, it is not the decision alone that should be considered but rather "what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial".

Focus on analysis on findings concerning credibility "should be directed at whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel"(para. 25) This however does not require "reasons to be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel." Credibility cases require that the court sufficiently articulate how credibility concerns have been resolved. Failure to do so may be a reversible error.

Where an oral and written decision contains inconsistent findings and reasons to key findings, a new trial may be warranted.

A trial judge's reasons should be reviewed on a "standard of adequacy". The reasons are adequate if, as a whole, accomplish three purposes:

1. informing the parties of the basis of the verdict,
2. providing public accountability and
3. permitting a form of appeal.

Failure to evaluate a complainant's evidence in light of independent contradictory evidence is a reverseable error.<rfe> R. v. Hanson (K.J.), 2010 ABQB 128 (CanLII) </ref>

See also Canadian Criminal Procedure and Practice/Trials/Verdicts

Error on Question of Law

Under s.675(1)(a)(ii), the defence may appeal a conviction on error of law.

Where there has been an error of law, such as the improper admission evidence, and the evidence may have influenced the trier of fact in reaching its verdict, the conviction must be quashed, irrespective of whether the admissible evidence supports a conviction.

However, the Court may dismiss an appeal and deny any remedy under s. 686(1)(a)(ii), where the court "is of the opinion that no substantial wrong or miscarriage of justice has occurred"(s.686(1)(b)(iii)).

Miscarriage of Justice

Under s.686(1)(a)(iii), the defence may appeal a conviction based on a miscarriage of justice.

A miscarriage of justice may arise in the following circumstances:

• a misapprehension of "significant evidence"
• improper questioning during cross-examination
• guilty plea

Lack of Prejudice

Under s. 686(1)(b)(iv), the Court may dismiss a defence appeal despite irregularities at trial where the "court of appeal is of the opinion that the appellant suffered no prejudice thereby".

In this context, "prejudice" refers to the prejudice suffered upon the accused's ability to defend himself, to receive a fair trial, and to the appearance of the administration of justice.

Reasonable Apprehension of Bias

A reasonable apprehension of bias is grounds for appeal. There is a presumption to judicial integrity. Thus, there needs to be substantial grounds and cogent evidence to support an apprehension.

Incompetent or effective counsel

See Canadian Criminal Procedure and Practice/Trials/Ineffective Counsel

Interfering with Sentences

Appeal of Sentence is a separate form of appeal from an appeal of verdict.

Under s. 673, a sentence is defined as:

“sentence” includes

(a) a declaration made under subsection 199(3),

(b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1) or 194(1), section 259, 261 or 462.37, subsection 491.1(2), 730(1) or 737(3) or (5) or section 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5,

(c) a disposition made under section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or 742.6(9), and

(d) an order made under subsection 16(1) of the Controlled Drugs and Substances Act;

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Under s. 785(b), an appeal of sentence includes appeals against ancillary orders such as driving prohibitions, restitution, discharges, etc.

An appellate court has no authority to consider any issue of fitness of sentence on an appeal of verdict. There must be a specific application to appeal sentence before it can be considered.

Sentence can only where there is an "error in principle, failure to consider a relevant factor, or an overemphasis of relevant factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit."

An appeal from a sentence in a summary conviction proceeding is identical to an appeal in an indictable matter. The governing section states:

687(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(b) dismiss the appeal.

The decision on sentence is an act of discretion and so the standard of review is one of deference. This deference does not change whether the sentence was after conviction or guilty plea.

Generally, a Court will only interfere where it is "demonstrably unfit".

To have grounds of appeal the appellant must be able to answer at least one or more of the following questions in the affirmative:

1. Is the sentence the result of an error of law?
2. Did the sentencing judge err in principle in the exercise of his or her discretion?
3. Is the sentence clearly unreasonable having regard to the fundamental purpose and objective of sentencing (s. 718) as well as the principles enunciated in section 718.1 and 718.2 of the Criminal Code?
4. Is the sentence a substantial and marked departure from the sentence customarily imposed for similarly situated offenders committing similar crimes?

SOIRA Order: only if there is an error in principle, a failure to consider a relevant factor, an overemphasis on appropriate factors, or a clearly unreasonable decision

The Crown has no authority to appeal the ordering of a particular length of SOIRA as it does not fit the meaning of "sentence" in s. 673.

Remedies

s. 686.
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Order to be made
(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.

Substituting verdict
(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.

Appeal from acquittal
(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

(a) dismiss the appeal; or

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

(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, 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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Where appeal allowed against verdict of unfit to stand trial
(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.
Appeal court may set aside verdict of unfit to stand 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.
Additional powers
(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.
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.

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Ordering a new trial

Where a new trial is ordered the provisions of s.686(5) and (5.1) apply:

s. 686.
...
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:

(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 provincial court judge, as the case may be, acting under Part XIX, other than a judge or provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or provincial court judge 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, 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) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 553 and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX, other than the provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the provincial court judge who tried the accused in the first instance.

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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,

(a) 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;

(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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Procedural Powers of the Court of Appeal

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.

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 rport
• amend an indictment

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

Disclosure Motion

An accused may apply to the court of appeal for a 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. The applicant must show:

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.

Procedure on Specific Issues

Notice of Appeal

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

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

Voir Dire Appeals

A voir dire hearing can happen at any point during a proceeding before the final decision on guilt. Parties 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.

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.

Issues of Appeal

It is inappropriate for the appellate court to raise any issues not raised by either Crown or Defence.

The accused may only raise a Charter issue on appeal that was not raised at trial where the following has been met:

1. there must be a sufficient evidentiary record to resolve the issue.
2. it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial.
3. the court must be satisfied that no miscarriage of justice will result from the refusal to raise such new issue on appeal.

Issues Not Raised at Trial

In certain cases, such as applications for privileged information, the failure to raise the issue at trial subsequent to a lost voir dire has been found to be fatal to a potential appeal.

In order to raise a Charter issue on appeal where it was no argued previously, there must be 1) sufficient evidence to deal with the issue, 2) satisifed that the failure to raise the issue previously was not merely a tactical issue, 3) there is no miscarriage of justice from raising the new issue.

Fresh Evidence

The test for the admission of fresh evidence is set out as follows:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
3. The evidence must be credible in the sense that it is reasonably capable of belief, and
4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

Where however, the application arises out of the Crown's failure to provide disclosure, then test is less onerous. The accused must show that his right to make full answer and defence was violated by showing either "that there is a reasonable possibility the non-disclosure affected the outcome at trial" or that it affected "the overall fairness of the trial process".

Post-Sentence Evidence

The courts are reluctant to consider fresh evidence on appeal as it is outside of the appeal court's role.

There are four criteria to consider before allowing the evidence:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue relating to the sentence.
3. The evidence must be credible in the sense that it is reasonably capable of belief.
4. The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

See also:R. v. Power, 2011 NLCA 68

Intervenors

A party may apply to intervene in an appeal where:

1. whether the intervention will unduly delay the proceedings;
2. possible prejudice to the parties if intervention is granted;
3. whether the intervention will widen the lis between the parties;
4. the extent to which the position of the intervenor is already represented and protected by one of the parties; and
5. whether the intervention will transform the court into a political arena.

These factors are balanced against each other and the interests of convenience, efficiency, and social purpose of moving the matter forward. The decision is ultimately a discretionary one.

Court Appointed Counsel for Appeals

Section 684(1) provides:

684(1) A court of appeal or a judge of that court may […] assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal 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.

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The “interests of justice” consists of many factors including:

• the points to be argued on appeal (Donald, Hoskins)
• the complexity of the case; (Donald, Hoskins, Assoun)
• the appellant's capability to advance his appeal considering his level of education and his competency; (Donald, Hoskins, Assoun)
• whether the assistance of counsel is necessary in order to marshal the evidence and make the argument; (Donald, Hoskins)
• the nature and extent of the penalty imposed; (Donald, Hoskins)
• the merits of the appeal (Donald, Hoskins)
• the court’s role to assist (Assoun)
• responsibility of Crown counsel to ensure that the applicant is treated fairly. (Morton)

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. 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.