Canadian Criminal Procedure and Practice/Appeals/Summary Offences

Summary Offence Appeals

Part XXVII of the Code governs appeals from summary conviction offence trials.

A party may appeal a summary conviction offence either under s. 813 or 830.

Section 813 sets out grounds of appeal for both defence and crown:

813. Except where otherwise provided by law,

(a) the defendant in proceedings under this Part may appeal to the appeal court

(i) from a conviction or order made against him,

(ii) against a sentence passed on him,

(iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and

(b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court

(i) from an order that stays proceedings on an information or dismisses an information,

(ii) against a sentence passed on a defendant, or

(iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial,

and the Attorney General of Canada or his agent 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 or his agent has under this paragraph.

R.S., 1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991, c. 43, s. 9.

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Section 830 was added in 1985 to expand the grounds of appeal beyond those set in 813 including adding appeals for "refusal or failure to exercise jurisdiction, as well as clarifying grounds of appeal such as from quashing an information and stay of proceedings.

Section 830 sets out as follows:

Appeals
830. (1) A party to proceedings to which this Part applies or the Attorney General may appeal against a conviction, judgment, verdict of acquittal or verdict of not criminally responsible on account of mental disorder or of unfit to stand trial or other final order or determination of a summary conviction court on the ground that

(a) it is erroneous in point of law;

(b) it is in excess of jurisdiction; or

(c) it constitutes a refusal or failure to exercise jurisdiction.

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It is not permissible to appeal under both s. 813 and 830 at the same time. They are mutually exclusive options (s. 836).

Appeal may be made from a joint statement of fact or trial transcript.(s. 812, 829, 838)

Crown Appeal

The Crown can appeal under s.813(b):

813. Except where otherwise provided by law,

...

(b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court

(i) from an order that stays proceedings on an information or dismisses an information,

(ii) against a sentence passed on a defendant, or

(iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial,

and the Attorney General of Canada or his agent 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 or his agent has under this paragraph.

R.S., 1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991, c. 43, s. 9.

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Generally, the Crown is not restricted on a summary conviction appeal to issues of law alone, but may also appeal on issues of mixed fact and law.

Under s. 813(b)(i) the crown may only appeal "from an order that stays proceedings on an information or dismisses an information" on grounds involving questions of fact alone.

The reference to "dismisses an information" includes acquittals, dismissal for want of prosecutions, and quashing of information at plea.

The Crown may appeal an order for "costs" as an error of law.

Defence Appeal

Under s. 813(a), an accused can appeal a summary conviction:

813. Except where otherwise provided by law,

(a) the defendant in proceedings under this Part may appeal to the appeal court

(i) from a conviction or order made against him,

(ii) against a sentence passed on him,

(iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and

...

R.S., 1985, c. C-46, s. 813; R.S., 1985, c. 27 (1st Supp.), s. 180; 1991, c. 43, s. 9.

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Appeal to Summary Conviction Appeal Court

Summary conviction appeals are to be taken according to Part XXVII of the Code, and be heard by a judge of the Superior Court of the province.

Under s. 822, the Summary Conviction Appeal Court is to follow the same rules as the Court of Appeal as set out in s. 683 to 689 when dealing with an appeal from s. 813. The main difference is that under s. 822(4), the SCAC may order a trial de novo where the applicant can show that there was a "denial of natural justice" or "substantial deficiency in the trial transcript".

Consequently, the remedial provisions of s. 686 are also applicable when considering a defence appeal against conviction, unfitness or NCR verdict the court is guided by 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;

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The Crown appeal remedial provisions of s. 686 are also applicable:

686(4) Where an appeal is from an acquittal 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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A summary conviction appeal judge cannot interfere with a trial judge's findings unless they were unreasonable or unsupported by evidence.

Historically, summary appeals were heard through a de novo trial.

Appeal to Court of Appeal

The Court of Appeal has no jurisdiction to hear summary conviction appeals.

The applicant, either Crown or Defence, must apply for leave before appealing to the Court of Appeal on questions of law:

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.

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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. the case must 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 latter questions, the main consideration is "interests of justice".

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"

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.