3.15 Appeals and Interventions in the Provincial and Territorial Courts of Appeal

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Revised March 25, 2022

Table of Contents

1. Introduction

This guideline sets out the factors that must be considered in deciding whether to appeal an acquittal or sentenceFootnote 1. It also identifies who should make the decision to appeal on behalf of the Crown and the process for deciding.

2. The decision to appeal against an acquittal

The authority to appeal in criminal proceedings comes entirely from statute. Common law appeals against conviction or acquittal do not exist.Footnote 2 In Canada, even accused persons had no effective right of appeal until 1923. In 1930, an amendment to the Criminal Code (Code) permitted Crown appeals against a "question of law alone". While the basis for Crown appeals has since been further defined in the Code, essentially the Crown is still limited to raising legal, not factual, issues.

At the foundation of criminal law lies the cardinal principle that no person shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts. This principle is reflected in s. 11(h) of the Canadian Charter of Rights and Freedoms (Charter). However, s. 11(h) does not preclude the Crown's right of appeal as the words "finally acquitted" in s. 11(h) have been interpreted to mean after the appellate procedures provided in the Code have been completed.Footnote 3

Over the past 60 years, the courts have signalled the need to show restraint in exercising the right to appeal. Only cases where the public interest is best served by pursuing should be appealed.

2.1. The Crown's right of appeal from acquittal is limited

In indictable matters, the Crown's right of appeal against an acquittal is found in s. 676(1)(a), which provides:

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.

This is a much narrower right of appeal than that conferred upon a convicted person, who may appeal against conviction on any ground of appeal that involves a question of law alone or, with leave of the court of appeal, on any ground of appeal that involves a question of fact or mixed fact and law, or any ground of appeal that appears to the court of appeal to be a sufficient ground of appeal (s. 675(1)(a) of the Code). On an accused's appeal against conviction the court may allow the appeal if it concludes that the verdict of guilty was unreasonable, if the trial judge made an error of law (e.g. in an evidentiary ruling, or in the charge to the jury),Footnote 4 or if there was a miscarriage of justice (s. 686(1) of the Code).

By contrast, the restriction on the Crown's right of appeal to a question of law alone means that the Crown cannot just complain about the verdict, or argue that the trier of fact rendered an unreasonable acquittal.Footnote 5 Justice Lamer (as he then was) explained as follows in Rousseau:Footnote 6

The trial judge considered that the accused's guilt was not established beyond a reasonable doubt. I have read the evidence and I believe that he did not, in so concluding, commit an error of law. Indeed, this is an appeal by the Crown from an acquittal, covered by s. 605(1)(a) of the Criminal Code, which limits the appeal to grounds "that involve [...] a question of law alone". For the doubt entertained by the judge to amount to an error of law it must be the result of conjecture and have no basis whatever in the evidence. [Emphasis added]

In addition to satisfying the court of appeal that a pure error of law led to the wrong outcome, the Crown must also show that "the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal".Footnote 7

2.2. No appeal from an interlocutory ruling

There is no right of appeal to a provincial or territorial court of appeal from an interlocutory order or pre-trial ruling.Footnote 8 Appeals are from verdicts. If there is no acquittal (or a judicially entered stay of proceedings, which for appeal purposes is the same as an acquittal),Footnote 9 the Crown has no right of appeal.

Where the trial judge has made a pre-trial ruling that for all practical purposes ends the prosecution, for example, a decision to exclude critical evidence under s. 24(2) of the Charter, or a disclosure order with which the Crown cannot comply because it would breach informer privilege, the prosecutor may simply invite an acquittal or a judicial stay, and consider an appeal on the basis of an error of law in the impugned ruling. However, where the impact of the ruling is not so decisive, the prosecutor should continue the prosecution and await the verdict, as otherwise the prosecutor's decision to invite an acquittal in order to trigger a right of appeal may be seen as an abuse of process.Footnote 10

2.3. The public interest

Not every unfavourable ruling or error in law should be appealed. Neither the judiciary nor the Crown has the resources to review every judgment that might be wrong. Still, the public expects and is entitled to a criminal justice system that is applied consistently and is effective in the suppression of crime.

Where the dual thresholds for a Crown appeal against acquittal are met – (1) error of law, (2) that in the concrete reality of the case materially contributed to the acquittal – the Crown will consider whether the public interest is best served by appealing the acquittal.

Factors which may be considered when deciding whether the public interest is best served by an appeal include the following:

  1. Is the issue raised by the case of widespread importance for the effective enforcement of the criminal law, or is its impact confined largely to the immediate case?
  2. Does the seriousness of the offence or the circumstances of the offender demand a reconsideration of the case?
  3. Have courts differed in interpreting the issue raised?
  4. Could the trial decision impair the enforcement or administration of a significant government policy initiative (for instance, confiscating the proceeds of crime, reducing domestic violence) if left unchallenged?
  5. Will the resources required to prepare and present the appeal significantly outweigh the value of pursuing the case further?Footnote 11
  6. Would the trial decision or decision to present an appeal have an impact on systemic racism, systemic discrimination, or the overrepresentation of certain groups in the criminal justice system, such as Indigenous accused and victims?

The application of and weight to be given to these and other relevant factors will depend on the circumstances of each case.

A decision whether to appeal must not be influenced by any of the following:

  1. The race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any other person involved in the case, unless these factors are considered in the analysis of the decision's impact on systemic racism, systemic discrimination, or the overrepresentation of certain groups in the criminal justice system;
  2. Crown counsel's personal feelings about the accused, the victim, or the trier of fact;
  3. Possible political advantage or disadvantage to the government, special interest group or political party; or
  4. The possible effect of the decision on the personal or professional circumstances of those responsible for making the decision to appeal.

3. The decision to appeal against a sentence

An appeal against a sentenceFootnote 12 need not be grounded in an error of law (s. 687 of the Code). However, the standard of review – error in principle, or a sentence that is manifestly unfit – nonetheless invites a court of appeal to give considerable deference to the sentencing judge and the Crown should not lightly initiate an appeal against the sentence.

It may be in the public interest to appeal where the trial judge erred in interpreting or applying a statutory provision or principle concerning the sentence, or where the sentence is clearly below the accepted range of sentences, not merely at the low end of the range, or where the sentence may set a negative precedent.

The Crown must also consider how long it will take to appeal, and whether by then the offender will have served his or her sentence and deserves reincarceration.

4. Initiating an appeal: The procedure

In general, the decision to initiate an appeal to a court of appeal is made by the Chief Federal Prosecutor (CFP) while the decision to initiate an appeal to the superior court can be made by the CFP or the Deputy Chief Federal Prosecutor (DCFP). This decision is made upon the written recommendation of Crown counsel with carriage of the prosecution at trial or, where the trial was conducted by an agent, of the agent supervisor. The CFP or DCFP will consult with the applicable regional litigation committee, and where appropriate the National Litigation Committee, before deciding.

Crown counsel may sometimes need to file a "protective" notice of appeal before consultations are completed and a final decision is taken about proceeding with the appeal. Protective notices should be the exception, not the rule, since counsel are obliged to bring significant adverse decisions to the attention of their superiors so that appropriate and timely action can be taken. Counsel should ensure that a final decision is made as soon after filing the notice as is reasonably practicable.

Finally, Crown counsel, including a legal agent, must not announce that an appeal will or will not be initiated until the decision has been made by the appropriate authority.

4.1. Conceding appeals

The Crown is much more frequently the respondent than the appellant on criminal appeals. On rare occasions, appellate counsel may be placed in a situation in which an error of law committed by the trial court is so clear, or the findings of fact so patently unreasonable, that it may raise the possibility that the appeal ought to be conceded. This may arise, for example, in a case where a decision by the Supreme Court of Canada subsequent to the trial but prior to the appeal completely undermines the basis for conviction.

The decision to concede an appeal or to concede on a particular issueFootnote 13 within the appeal is never one that can be taken lightly. As a general rule, Crown counsel's duty is to advance all reasonable arguments that may be made to support the decision of the court below, and to leave it to the appellate court to decide whether to allow the appeal.Footnote 14

Generally speaking, it is within the discretion of appellate counsel to concede on a particular issue in an appeal without conceding the appeal itself, where there is no reasonable argument to be made on that issue. Where that issue concerns the constitutional validity of federal legislation, however, instructions must be sought from the Office of the Director of Public Prosecutions (DPP), normally upon the advice of the National Litigation Committee. Where the issue concerns the constitutional validity of provincial legislation, consultation with the appropriate Attorney General's office is in order.

Appellate counsel may also be called upon to exercise a discretion with respect to the admission of fresh evidence on appeal. The admission of such evidence is governed by the well-known four-part test consistently used by the Supreme Court.Footnote 15 Counsel may well choose to consent to the admission of such evidence where it raises a substantial concern about an offender's innocence.Footnote 16

Further consultations are necessary when counsel is of the view that an appeal ought to be conceded. Before making such a recommendation to the CFP, appellate counsel will seek the views of the trial counsel and, where appropriate, the investigative agency. Where the concession is in a significant case,Footnote 17 consultation with the appropriate Litigation Committee will be necessary.

5. The Crown as intervener

Generally, only the parties to a criminal prosecution, Crown and accused, may participate in an appeal before a provincial or territorial court of appeal. Interveners, when allowed, are generally not permitted to add to the issues in dispute, or to enlarge the record.

In deciding whether to exercise its discretion to permit an intervener, the court of appeal will consider whether this will delay the hearing or resolution of the appeal, prejudice the parties including increased costs, whether the intervener has additional submissions to offer not already advanced by the parties, and the prospect of the appeal between the parties being expanded by the intervener's interests.Footnote 18 A recognized consideration that is relevant to the Public Prosecution Service of Canada is whether it is desirable to have a national perspective on the issues brought in to the appeal.Footnote 19

The decision to intervene in a provincial or territorial court of appeal is made by the DPP. The procedure for applying to intervene is the same as is explained in the PPSC Deskbook guideline "3.16 Supreme Court of Canada Litigation".

6. Appeals from summary conviction appeals

In summary conviction matters, the accused may appeal from the adverse decision of a summary conviction appeal court (normally the superior court of justice) to the court of appeal on any ground of appeal that involves a question of law alone, with leave of the court of appeal or a judge of that court (s. 839 of the Code).

For many years in some jurisdictions the issue of leave to appeal was simply rolled into the main appeal, and was considered at the same time as the oral hearing of the appeal on its merits.Footnote 20 Leave to appeal to the court of appeal was routinely granted, whether or not the appeal on its merits was allowed or dismissed.

In the 2008 judgment in R v R.R.Footnote 21 the Ontario Court of Appeal significantly reinvigorated the requirement of leave to appeal contained in s. 839 of the Code. Doherty JA, writing for the court, reasoned that:

The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control its summary conviction appeal docket. Access to this court for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal.Footnote 22

Justice Doherty went on to explain that leave to appeal to the court of appeal in a summary conviction matter may be granted: (1) where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners of the case; and (2) where there appears to be a "clear" error even if it cannot be said that the error has significance to the administration of justice beyond the specific case.

The courts of appeal in some other provinces and territories have moved in a similar direction.Footnote 23

Therefore, when Crown counsel is facing an appeal to the court of appeal in a summary conviction matter, counsel must consider whether to oppose leave to appeal by reference to the above considerations. In some cases, Crown counsel will want to press the court of appeal to determine the issue of leave in advance, thereby avoiding an investment of time and resources responding to a groundless appeal.Footnote 24 The application may be made to a single justice (s. 839 of the Code).

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