Canadian Criminal Procedure and Practice/Appeals/Indictable Offences
Indictable Offence Appeals
At common law, there is no method of appealing convictions or acquittals for indictable offences. The right to appeal an indictable offence to the provincial Court of Appeal is derived from the Criminal Code in Part XXI.
There are still the related common law remedies of Habeas Corpus, Canadian Criminal Procedure and Practice/Pre-Trial Matters/Mandamus and Certiorari|Mandamus and Certiorari]]. However the common law writ of error and writ of error coram nobis was removed by the Criminal Code in 1892.
The statutory right of appeal exists for the accused on questions of fact and mixed fact/law. The crown's statutory right to appeal exists on questions of law alone. Appeals on sentence by either Crown or Accused is considered a separate basis of appeal.
See also: R. v. Robinson, 1989 ABCA 267 (CanLII)
Where there is no right to appeal granted by statute, the party seeking appeal must apply and be granted leave for appeal before the court can assess the merits of the appeal issues.
The crown may appeal on indictable matters for the situations set out in section 676:
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.
This section provides the crown a right of appeal to an acquittal or NCR verdict on a question of law alone (676(1)(a)), a court order to quash an indictment (676(1)(b), 676(1)(c)), a order for a stay of proceedings (676(1)(c)).
The crown has a right of appeal aquittal only on a question of law. Thus, acquittals based on matters of credibility cannot be appealed.
Even where there is a question of law alone, the Crown must still establish a connection between the error in law and the acquittal. The error must be "directly and concretely" related to the acquittal.
The Courts must "avoid seizing on perceived deficiencies in a trial judge's reasons for acquittal to create a ground of unreasonable acquittal."
Cases of "unreasonable verdict" or "miscarriage of justice" have little relevance to crown appeals under s.676(1)(a) for error of law.
- see s. 676(1)(a)
R. v. Samuels (J.K.), 2009 ONCA 614 at para. 19
R. v. Evans, 1993 CanLII 102 (SCC),  2 S.C.R. 629 at p. 645 referring to a “very heavy onus”
- R. v. Sutton, 2000 SCC 50,  2 S.C.R. 595 at para. 2
- R. v. R.G.B., 2012 MBCA 5, 275 Man.R. (2d) 119 at para. 19
- R v Walker 2008 SCC 34 at para. 2
- R v JMH 2011 SCC 45 at para. 35
An accused person may appeal a conviction for an indictable matters for the situations set out in s. 675
Right of appeal of person convicted
675. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal
- (a) against his conviction
- (i) on any ground of appeal that involves a question of law alone,
- (ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof or on the certificate of the trial judge that the case is a proper case for appeal, or
- (iii) on any ground of appeal not mentioned in subparagraph (i) or (ii) that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal; or
- (b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.
Thus, an accused person may appeal a conviction as of right on a question of law or a decision concerning a prerogative writ (e.g. mandamus , certiorari , or prohibition). The accused needs leave before applying on a question of fact or mixed fact and law. An accused also requires leave to appeal a sentence, unless the sentence includes parole ineligibility of greater than 10 years for second degree murder in which case leave is not required.
Where the leave application is denied on any matter except sentence, the accused may apply by filing within 7 days a notice of application for leave to have the appeal heard.
See s. 675(1)(a) re question of law
See s. 784(1) and (2) re writs
R. v. Leroux 2006 QCCA 1144
- see s. 675(1)(a)
- see s. 675(1)(b)
- s. 675(2)
- s 675(4)