Appeals

 Indictable Offences – 21 and 26.

 An appeal through the Supreme Court may be possible under s40.
 Dagenais v CBC-literal interpretation of s674 Code would exclude relying on s40 and such a literal interpretation could not be adopted.
used to allow 3rd publication ban –not provided in the Code.
 R v Laba -s40 permitted the Crown to appeal a ruling overturned a reverse onus clause in the Code. The Crown was appealing a case he
had won.
 s40 is sometimes used in cases where an appeal of an interlocutory order is in an issue

Appeals of Indictable Offences

1) Appeals by the accused

 s675(1)(a)- a person can appeal a conviction based on law alone ( with leave of court of appeal) on a question of fact, on mixed
questions of law and fact or “any ground of appeal that appears to the court of appeal to be sufficient ground of appeal.”
 This appeal process goes through 3 “filters” limiting each ground.

The first two filters are found in s686(1)(a). s675- sets out the bases upon which an appeal can be made; the grounds upon which they can be granted
are narrow.

s686 (1)(a) sets out those grounds:

i. the verdict should be set aside on the ground that it is unreasonable or cannot supported by the evidence
ii. the judgement 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.

 If someone makes an appeal based on error of relating to mix fact or mixed fact and law-appeals will not necessarily begranted under
s686(1)
 (First filter) Only an error that results in an unreasonable verdict or a miscarriage of justice will be sufficient.
 (second filter) relates to questions of law- s686(a)(ii) says that demonstrating a wrong decision on such a question will lead to a
successful appeal. It does not mean it will be granted as it may be treated as a question of mixed fact and law.
 (third filter)- even if conditions set in s686(1)(a) it may not be granted. These grounds are even more narrowed by s686(1)(b) which
sets out grounds where court of appeal can dismiss and appeal.

686 (b)- contains 2 other bases which an appeal might be dismissed despite an error.

iii)- the court is of the opinion that no substantial miscarriage of justice has occurred or

iv) c appellant was convicted by no suffered no prejudice.

 the former of two are called the “curative proviso”

 Errors of law that have no substantial wrong do not create a miscarriage of justice.
 if an appeal is granted under 686(1)(a)- the court of appeal quashes the conviction and either acquit the accused or order a
new trial.

Appeal Provisions

Standard of review- Housen v Nikolaisen [2002]-

 pure questions of law- correctness –appellant court can substituted its opinion for that of the trial judge.
 questions of fact-are only reviewable higher standard. A finding should not be overturned in the absence of a “palpable and overriding
error”

3 rationales for these:

a) costs-should have limits on availability

b) judges would look incompetent if giving to easily
c) trial judges are better at fact findings because they hear the facts.

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  questions of mix law and facts are most complicated. these issues fall on a spectrum

Unreasonable verdicts

 Housen v Nikolaisen [2002]- basic standard of assessing whether a verdict is unreasonable is “whether the verdict is one that a
properly instructed jury acting judicially, could reasonably have rendered.”
 This test has both objective and subjective elements.
 The same principle applies to both jury and judges alone but there are minor differences.

Juris
do not give reasons and are precluded from revealing anything concerning the deliberations in the jury room. If a jury was charged
incorrectly then there would be an error of law-and appeal bases on s686(1)(a)(ii) rather (1).

If a jury has been properly instructed but has returned with a questionable verdict-it means that the jury was not acting judicially.
The jury should act dispassionately and apply the law and adjudicate on the basis of the record and nothing else.

The same standard applies to concluding that a judge has rendered an unreasonable verdict .

Beaudry-circumstances where trial judge verdict unreasonable- finding an error in the trial judges reasoning is useful whether a verdict is
unreasonable but has no great significance. It comes down to the ultimate verdict.

 Justice Charon - finding an error in the trial judges reasoning is useful whether a verdict is unreasonable but has no great
significance. It comes down to the ultimate verdict
 Justice Fish – s686(1)(a)(i)- refers to verdicts that are unreasonable or cannot be supported on the evidence, there are two bases upon
which such an appeal could succeed.
 Justice Binne- votes with Charon in the result making those reasons that majority conclusion on whether the appeal succeed or fails.

A verdict can be found to be unreasonable when multiple accused and counts that are inconsistent verdicts.

Errors of law and Miscarriage of Justice

 s686(1)(a)(ii)- permits an appeal to be granted on a wrong decision of law

 s686(1)(a)(ii)- permits an appeal based on miscarriage of justice.

Errors of law

 R v Beavan [1993] failing to give a Vetrovec warning where one is require is an error of law.
 R v G (RM) [1996] Flawed instruction to the jury as an improper exhortatation.


Miscarriage of justice

 can either be procedural or substantive

 Fanjoy v The Queen [1985] any error that deprives the accused of a fair trial is a legal error.

Procedural Irregularities

s686(1)(b)(iv) allows appeals on irregularities in procedure.

Appeals by the Crown

 can be brought under s676 Code

 appeal rights are not the same as accused (Crown’s right is narrower)
 Crown cant appeal if acquittal was unreasonable.
 crown’s right is set out in s676(1)(a)-any ground that involves a question of law alone”

Other Appeal Issues

 s683 a court of appeal can order exhibits or other items produced, hear witnesses or amended an indictment

fresh evidence on appeal

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  is is possible that fresh evidence on appeal be introduced that was not before the trial court. It has to be done in a certain
way. R v Palmer –court lays down guidelines for introduction of new evidence:
1. The evidence should be generally not be admitted if it could have been adduced at trial
2. the evidence must be relevant
3. evidence must be credible and reasonably capable of belief
4. if believable it could reasonably with other evidence have an effect on the results.

Duty to give reasons

Sheppard - There is no duty to give reasons pg370

 8 reasons when a trial judge had to give reasons 371.

1. accountability -owed to the public
2. a person should not be left in doubt about why a conviction has occurred
3. lawyers and advisors may require reasons to assist them in regards to potential appeals
4. reasons play an important role in the appellant process
5. ..

Appeals of Summary Convictions

 the court is different- provinces superior courts of criminal jurisdiction.

 different grounds
 s813 Code
 also different methods of appeal.

Appeals in Supreme Court of Canada

 s691 and 695- create a right to appeal decisions of a court of appeal regarding indictable offences in Canada.
 can only be based on a question of law. no other ground.

 two times when a n accused or Crown are permitted to appeal.

- where a judge of the court of appeal dissents on a question of law
- when SCC gives leave to appeal a question of law.