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Cumulative Supplement
Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue)

Alan D. Gold (Main Title Contributor)
(Updates prepared by LexisNexis Canada Inc.)
Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue) (Gold)
CUMULATIVE SUPPLEMENT
Covering developments in the law between April 1, 2016 and September 15, 2018
Note: To maintain the currency of Halsbury's Laws of Canada, each title is updated on an annual basis to identify
developments which have taken place subsequent to its publication. This Cumulative Supplement sets out these
annual developments in the law that pertain to the above-noted title. The updates below will also be found in the
individual paragraphs of the titles' main commentary to which they relate. The complete title supplement is
consolidated here for easy reference, assisting researchers who wish to quickly review recent case law and
changes in the legislation. The order of the material in this Cumulative Supplement corresponds to the title and
paragraph order of the main title.
End of Document
HC2-661 Application of Part XXVI.
Alan D. Gold (Contributor)
HC2-661
Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue) (Gold) > XIII. EXTRAORDINARY
REMEDIES > 1. General
XIII. EXTRAORDINARY REMEDIES
1. General
HC2-661 Application of Part XXVI. Part XXVI of the Code, which deals with extraordinary remedies, applies to
proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.1
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 774.
End of Document
HC2-662 Order for security by recognizance.
HC2-662
1. General
HC2-662 Order for security by recognizance. A court that has authority to quash a conviction, order or other
proceeding on certiorari may prescribe by general order that no motion to quash any such conviction, order or other
proceeding removed to the court by certiorari shall be heard unless the defendant has entered into a recognizance
with one or more sufficient sureties, before one or more justices of the territorial division in which the conviction or
order was made or before a judge or other officer, or has made a deposit to be prescribed with a condition that the
defendant will prosecute the writ of certiorari at his own expense, without wilful delay, and, if ordered, will pay to the
person in whose favour the conviction, order or other proceeding is affirmed his full costs and charges to be taxed
according to the practice of the court where the conviction, order or proceeding is affirmed. 1
Forfeiture provisions to apply. The provisions of Part XXV relating to forfeiture of recognizances apply to a
recognizance entered into pursuant to the preceding paragraph. 2
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 779(1).
End of Document
HC2-663 Further detention while determining legality of imprisonment.
HC2-663
1. General
HC2-663 Further detention while determining legality of imprisonment. Where proceedings to which Part
XXVI applies have been instituted before a judge or court having jurisdiction, by or in respect of a person who is in
custody by reason that he is charged with or has been convicted of an offence, to have the legality of his or her
imprisonment determined, the judge or court may, without determining the question, make an order for the further
detention of that person. The judge or court may also direct the judge, justice or provincial court judge under whose
warrant he is in custody, or any other judge, justice or provincial court judge, to take any proceedings, hear such
evidence or do any other thing that, in the opinion of the judge or court, will best further the ends of justice. 1
Nature of section. The above provision has been judicially considered.2
Appeals. There is no right of appeal from an order made by a judge of the Ontario Court of Justice declaring the
accused's previous detention illegal pursuant to referral of matter to him or her under s. 775 of the Criminal Code
upon the accused's habeas corpus application. “Appellate jurisdiction is entirely statutory.”3
Footnote(s)
2 R. v. Ferreira, [1981] B.C.J. No. 279, 58 C.C.C. (2d) 147 (B.C.C.A.) and R. v. Demerais, [1978] O.J. No. 959, 42
C.C.C. (2d) 287 (Ont. C.A.).
3 R. v. Rosete, [2007] O.J. No. 3273 at para. 1, 225 C.C.C. (3d) 548 (Ont. C.A.).
End of Document
HC2-664 Certiorari available only for jurisdictional error.
HC2-664
REMEDIES > 2. Certiorari
2. Certiorari
HC2-664 Certiorari available only for jurisdictional error. Certiorari, or motion to quash, is available only for
jurisdictional defects.1 Lack of jurisdiction is the only ground for quashing a committal for trial. 2 As a lack of initial
jurisdiction is unlikely, there is a greater concern for loss of jurisdiction. Jurisdiction will be lost if the justice fails to
observe the mandatory provisions of the Code. A denial of natural justice also goes to jurisdiction. 3 In the case of a
preliminary hearing, this could arise from a complete denial to the accused of his right to cross-examine or to call
witnesses. The refusal of the justice to allow cross-examination on a police officer's notes, even if wrong, does not
result in a loss of jurisdiction.4 Certiorari is available to seek to quash a subpoena.5
Jurisdiction of Superior Court. When the Crown brings a successful application to quash a discharge after a
preliminary inquiry, the only order the Superior Court can make is to remit the matter to the preliminary inquiry judge
for further consideration on the whole of evidence. There is no jurisdiction for the Superior Court to enter a
committal for trial.6
Examples. Examples of jurisdictional error meriting extraordinary remedies include the following:
1. A preliminary inquiry judge committed the accused to stand trial where there is no evidence of an essential
element of the offence.7
2. A preliminary inquiry judge discharged the accused by applying the doctrine of reasonable doubt. 8
3. A refusal to allow the accused to call witnesses at a preliminary inquiry, being a failure to comply with a
mandatory Criminal Code provision.9
No loss of jurisdiction. A breach of the Charter is not necessarily jurisdictional error and a judge's ruling on an
alleged Charter breach is not immediately reviewable by certiorari.10 Extraordinary relief should only be invoked
where a palpable infringement of a constitutional right has taken place or is clearly threatened. Only in special and
exceptional circumstances can it be said that the denial of a constitutional right has resulted in a loss of jurisdiction
so as to justify the extraordinary remedies of certiorari and prohibition. The following matters also did not constitute
jurisdictional error:
1. A decision at a preliminary inquiry concerning the admissibility of evidence, even if erroneous, does not
affect jurisdiction.11
2. The decision of a provincial court judge conducting a preliminary inquiry regarding the validity of an
information.12
Page 6 of 170
HC2-664 Certiorari available only for jurisdictional error.
3. A trial judge's interpretation of the Code sections on jury selection. An appeal after the trial is the available
review procedure.13
Footnote(s)
1 R. v. Russell, [2001] S.C.J. No. 53, [2001] 2 S.C.R. 804 (S.C.C.).
3 Dubois v. R., [1986] S.C.J. No. 21, 25 C.C.C. (3d) 221 (S.C.C.).
4 Forsythe v. R., [1980] S.C.J. No. 66, 53 C.C.C. (2d) 225 (S.C.C.); R. v. Parsons, [1992] N.J. No. 97, 72 C.C.C. (3d)
137 (Nfld. C.A.); R. v. Roussel, [1979] A.J. No. 885, 10 C.R. (3d) 184 (Alta. C.A.); Depagie v. R., [1976] A.J. No. 439,
32 C.C.C. (2d) 89 (Alta. C.A.); R. v. George, [1991] O.J. No. 1704, 69 C.C.C. (3d) 148 (Ont. C.A.).
5 R. v. Jobin, [1995] S.C.J. No. 31, [1995] 2 S.C.R. 78 (S.C.C.).
6 R. v. Thomson, [2005] O.J. No. 1124, 74 O.R. (3d) 721 (Ont. C.A.).
8 Dubois v. R., [1986] S.C.J. No. 21, 25 C.C.C. (3d) 221 (S.C.C.).
9 R. v. Lena, [2001] B.C.J. No. 1906, 158 C.C.C. (3d) 415 (B.C.C.A.).
10 R. v. Corbeil, [1986] O.J. No. 175, 27 C.C.C. (3d) 245 (Ont. C.A.).
11 Quebec (Attorney General) v. Cohen, [1979] S.C.J. No. 50, 13 C.R. (3d) 36 (S.C.C.).
12 Quebec (Attorney General) v. Cohen, [1979] S.C.J. No. 50, 13 C.R. (3d) 36 (S.C.C.).
13 R. v. Jones (Nos. 1 and 2), [1974] O.J. No. 1835, 16 C.C.C. (2d) 338 (Ont. C.A.).
End of Document
HC2-665 When conviction or order reviewable.
HC2-665
2. Certiorari
HC2-665 When conviction or order reviewable. Despite that a conviction, order or warrant for enforcing a
conviction or order is removed by certiorari, it shall not be held to be invalid by reason of any irregularity, informality
or insufficiency therein, where the court before which or the judge before whom the question is raised is satisfied
upon a perusal of the evidence that:
1. An offence of the nature described in the conviction, order or warrant, as the case may be, was committed.
2. There was jurisdiction to make the conviction or order or issue the warrant, as the case may be.
3. The punishment imposed, if any, was not in excess of the punishment that might lawfully have been
imposed.
However, the court or judge is conferred with the same powers as a court to which an appeal might have been
taken in terms of dealing with the proceedings in the manner that the court or judge considers proper. 1
Correcting punishment. Where, in proceedings to which the above provision applies, the court or judge is
satisfied that a person was properly convicted of an offence but the punishment that was imposed is greater than
the punishment that might lawfully have been imposed, the court or judge shall either correct the sentence or remit
the matter to the convicting judge, justice or provincial court judge and direct him to impose a punishment that is not
greater than the punishment that may be lawfully imposed.
Method of punishment. How a sentence is corrected depends upon the method of punishment. Where the
punishment is a fine, then the corrected fine shall be one that does not exceed the maximum fine that might lawfully
have been imposed. Where the punishment is imprisonment, and the person has not served a term of imprisonment
under the sentence that is equal to or greater than the term of imprisonment that might lawfully have been imposed,
then the corrected term of imprisonment shall not exceed the maximum term of imprisonment that might lawfully
have been imposed. Where the punishment is a fine and imprisonment, then the correct punishment shall be in
accordance with those described above in respect of each of the fine and the term of imprisonment. 2 This provision
empowers a court to correct consecutive sentences imposed illegally or remit the matter to the trial judge for
correction.3
Amendment. Where an adjudication is varied pursuant to either of the above provisions, the conviction and
warrant of committal, if any, shall be amended to conform to the adjudication as varied. 4
Sufficiency of statement. </mnote>Any statement that appears in a conviction and is sufficient for the purpose of
Page 8 of 170
HC2-665 When conviction or order reviewable.
the conviction is sufficient for the purposes of an information, summons, order or warrant in which it appears in the
proceedings.5
Irregularities. Without restricting their generality, each of the provisions above are deemed to apply in the
following situations:6
4. Where the statement of the adjudication or of any other matter or thing is in the past tense instead of in the
present tense;
5. Where the punishment imposed is less than the punishment that might by law have been imposed for the
offence that appears by the evidence to have been committed; or
6. Where there has been an omission to negative circumstances, the existence of which would make the act
complained of lawful, whether those circumstances are stated by way of exception or otherwise in the
provision under which the offence is charged or are stated in another provision.
Footnote(s)
3 Carleton v. R., [1982] B.C.J. No. 2142, 2 C.C.C. (3d) 310 (B.C.C.A.).
End of Document
HC2-666 Where conviction or order not reviewable.
HC2-666
2. Certiorari
HC2-666 Where conviction or order not reviewable. Certain orders and convictions shall not be removed by
certiorari. Included are those where an appeal was taken, whether or not the appeal has been carried to a
conclusion, and those where the defendant appeared and pleaded and the merits were tried, and an appeal might
have been taken, but the defendant did not appeal. 1
Failure of appeal. The provision above compels resort to appeal procedures where available rather than
extraordinary remedies.2 However, it does not bar review of a warrant of committal by certiorari to correct an illegal
sentence apparent on the face of the warrant as a warrant of committal is not a “conviction or order” as
contemplated by the section.3
Footnote(s)
2 Sanders v. R., [1969] S.C.J. No. 71, [1970] 2 C.C.C. 57 (S.C.C.); Gallicano v. R., [1978] B.C.J. No. 1152, 42 C.C.C.
(2d) 113 (B.C.C.A.); Beaupre v. R., [1981] M.J. No. 21, 61 C.C.C. (2d) 92 (Man. C.A.).
3 Carleton v. R., [1982] B.C.J. No. 2142, 2 C.C.C. (3d) 310 (B.C.C.A.).
End of Document
HC2-667 Nature of habeas corpus.
HC2-667
REMEDIES > 3. Habeas Corpus > (1) General
3. Habeas Corpus
(1) General
HC2-667 Nature of habeas corpus. Unlike other extraordinary remedies, habeas corpus is a remedy as of right
once a court concludes that the applicant has been illegally deprived of their liberty. 1 On an application for habeas
corpus with or without certiorari in aid, a court can consider affidavit or other extrinsic evidence to determine
whether there has been an absence or an excess of jurisdiction. Extrinsic evidence must not be permitted, however,
to convert an application for habeas corpus into an appeal on the merits. The record of a Superior Court or court of
general common law jurisdiction is conclusive as to the facts on which the court's jurisdiction depends and cannot
be controverted by extrinsic evidence.2
Scope. In general, habeas corpus is no longer necessary or available to review denial of bail. 3 A constitutional
attack on the applicable provisions can be made by a habeas application. Habeas corpus is not available to review
a conviction and sentence by a court of competent jurisdiction. However, habeas corpus can still be used to review
a decision to subject a prison inmate to a more severe form of imprisonment, 4 or to refuse or remove transfer to a
less severe imprisonment,5 as well as other correctional decisions.6
Appearance in person. Despite any other Code provision, the person who is the subject of a writ of habeas
corpus must appear personally in court.7
Footnote(s)
1 St. Amand v. Canada (Attorney General), [2000] J.Q. no 2637, 147 C.C.C. (3d) 48 (Que. C.A.).
2 R. v. Miller, [1985] S.C.J. No. 79, 23 C.C.C. (3d) 97 (S.C.C.); Cardinal v. R., [1982] B.C.J. No. 2301, (sub nom.
Cardinal v. Kent Institution) 67 C.C.C. (2d) 252 (B.C.C.A.), revd on other grounds [1985] S.C.J. No. 78, 23 C.C.C.
(3d) 118 (S.C.C.).
3 R. v. Pearson, [1992] S.C.J. No. 99, 77 C.C.C. (3d) 124 (S.C.C.).
4 Mission Institution v. Khela, [2014] S.C.J. No. 24, 2014 SCC 24 (S.C.C.); R. v. Miller, [1985] S.C.J. No. 79, 23
C.C.C. (3d) 97 (S.C.C.); Cardinal v. R., [1982] B.C.J. No. 2301, 67 C.C.C. (2d) 252 (B.C.C.A.), revd on other grounds
[1985] S.C.J. No. 78, (sub nom. Cardinal v. Kent Institution) 23 C.C.C. (3d) 118 (S.C.C.); Lising v. Kent Institution,
[2007] B.C.J. No. 346, 2007 BCSC 248 (B.C.S.C.), affd [2008] B.C.J. No. 40, 2008 BCCA 10 (B.C.C.A.); Athwal v.
Ferndale Institution , [2006] B.C.J. No. 2083, 2006 BCSC 1386 (B.C.S.C.); Mapara v. Ferndale Institution, [2007]
B.C.J. No. 99, 2007 BCSC 100 (B.C.S.C.).
Page 11 of 170
HC2-667 Nature of habeas corpus.
5 Musitano v. Canada (Attorney General), [2006] O.J. No. 1152 (Ont. S.C.J.).
6 May v. Ferndale Institution, [2005] S.C.J. No. 84, 34 C.R. (6th) 228 (S.C.C.).
7 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 774.1.
End of Document
HC2-668 Jurisdiction.
HC2-668
REMEDIES > 3. Habeas Corpus > (2) Nunavut Proceedings
3. Habeas Corpus
(2) Nunavut Proceedings
HC2-668 Jurisdiction. Habeas corpus proceedings may be brought before a judge of the Court of Appeal of
Nunavut in respect of an order made or warrant issued by a judge of the Nunavut Court of Justice, except where
the order or warrant is of a kind that could only be made or issued in a province or a territory other than Nunavut by
a superior court of criminal jurisdiction or a judge as defined in s. 552, or where another statutory right of review or
appeal is available.1
Exception. Despite the above, habeas corpus proceedings may be brought before a judge of the Court of Appeal
of Nunavut with respect to an order or warrant of a judge of the Nunavut Court of Justice if the proceedings are
brought to challenge the constitutionality of a person's detention or confinement. 2
Other provisions apply. With respect to proceedings brought pursuant to either of the above provisions, subs.
784(2) to (6) will apply.3
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 573.2(1).
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 573.2(3); s. 748 deals with appeals to the court of appeal, including
providing for the application of Part XXI to such an appeal.
End of Document
HC2-669 Scope of prohibition.
HC2-669
REMEDIES > 4. Prohibition
4. Prohibition
HC2-669 Scope of prohibition. Prohibition does not lie to review a decision of the trial judge as to whether to
grant a mistrial.1 The jurisdiction of the judge to proceed with a jury trial was not suspended by service of an
application for prohibition, without a motion to quash, on the third day and close to the end of the trial. Nor did the
maintenance of judicial dignity require the trial judge to discontinue the trial. 2
Footnote(s)
1 Stewart v. R., [1977] O.J. No. 1614, 36 C.C.C. (2d) 5 (Ont. C.A.).
2 R. v. Turkiewicz, [1979] O.J. No. 4428, 50 C.C.C. (2d) 406 (Ont. C.A.).
End of Document
HC2-670 Effect of order dismissing application to quash.
HC2-670
REMEDIES > 5. Quashing Conviction, Order, Proceeding or Warrant
5. Quashing Conviction, Order, Proceeding or Warrant
HC2-670 Effect of order dismissing application to quash. Where a motion to quash a conviction, order or other
proceeding is refused, the order of the court refusing the application is sufficient authority for said conviction, order
or proceeding to be returned to the court from which or the person from whom it was removed, and for proceedings
to be taken with respect to the enforcement thereof. 1
Scope of section. This section has been judicially considered.2
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 780; such a conviction, order or proceeding is to be returned forthwith
by the clerk of the court.
2 Batchelor v. R., [1977] S.C.J. No. 126, 38 C.C.C. (2d) 113 (S.C.C.).
End of Document
HC2-671 No action against official where conviction, order or proceedings
quashed.
HC2-671
HC2-671 No action against official where conviction, order or proceedings quashed. Where an application is
made to quash a conviction, order or other proceeding made or held by a provincial court judge acting under Part
XIX or a justice on the ground that he exceeded his jurisdiction, the court to which or the judge to whom the
application is made may, in so quashing, order that no civil proceedings shall be taken against the justice or
provincial court judge or against any officer who acted under the conviction, order or other proceeding or under any
warrant issued to enforce it. 1 Immunity under this provision should only be refused where there is a serious basis to
do so, such as dishonest or malicious conduct.2
Footnote(s)
2 Mayrand v. Cronier, [1981] J.Q. no 146, 63 C.C.C. (2d) 561 (Que. C.A.).
End of Document
HC2-672 Want of proof of order in council.
HC2-672
HC2-672 Want of proof of order in council. No order, conviction or other proceeding shall be quashed or set
aside, and no defendant shall be discharged, by reason only that evidence of the following has not been given:
1. A proclamation or order of the Governor in Council or the Lieutenant Governor in Council;

2. Rules, regulations or by-laws made by the Governor in Council under an Act of Parliament or by the
Lieutenant Governor in Council under an Act of the legislature of the province; or
3. The publication of a proclamation, order, rule, regulation or by-law in the Canada Gazette or in the official
gazette for the province.1
Judicial notice. All proclamations, orders, rules, regulations and by-laws mentioned above and the publication
thereof shall be judicially noticed.2
Footnote(s)
End of Document
HC2-673 Defect in form.
HC2-673
HC2-673 Defect in form. No warrant of committal shall, on certiorari or habeas corpus, be held to be void by
reason only of any defect therein, where it is alleged in the warrant that the defendant was convicted and there is a
valid conviction to sustain the warrant.1
Footnote(s)
End of Document
HC2-674 Appeals to Court of Appeal.
HC2-674
REMEDIES > 6. Appeals
6. Appeals
HC2-674 Appeals to Court of Appeal. An appeal lies to the court of appeal from a decision granting or refusing
the relief sought in proceedings by way of mandamus, certiorari or prohibition.1 Subject to the provisions below, Part
XXI applies with such modifications as the circumstances require, to such appeals. 2 The incorporation of Part XXI
by this provision makes s. 686 applicable to appeals in extraordinary remedies cases. 3 Note also that an appeal by
the prosecutor from a decision granting certiorari is not limited to questions of law alone.4
Refusal of application and appeal. Where an application for a writ of habeas corpus ad subjiciendum is refused
by a judge of a court having jurisdiction therein, no application may again be made on the same grounds, whether
to the same or to another court or judge, unless fresh evidence is adduced. However, an appeal from that refusal
shall lie to the court of appeal, and where on the appeal the application is refused a further appeal shall lie to the
Supreme Court of Canada, with leave of that Court. 5
Where writ of habeas corpus granted. Where a writ of habeas corpus ad subjiciendum is granted by any judge,
no appeal therefrom shall lie at the instance of any party including the Attorney General of the province concerned
or the Attorney General of Canada.6
Appeal from judgment on return of writ. Where a judgment is issued on the return of a writ of habeas corpus ad
subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the
Supreme Court of Canada, with the leave of that Court. However, only the applicant or the Attorney General of the
province concerned or the Attorney General of Canada, may bring such an appeal. 7 This does not create an
interlocutory right to appeal in extradition cases where the accused has brought a habeas corpus application to
attack his extradition proceedings in advance of the committal hearing. 8
Hearing of appeal. An appeal in habeas corpus matters shall be heard by the court to which the appeal is directed
at an early date, whether in or out of the prescribed sessions of the court. 9
Footnote(s)
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 784(2); Part XXI deals with appeals in respect of indictable offence
proceedings.
3 This includes subpara. 686(1)(b)(iv); see R. v. Sagutch, [1991] B.C.J. No. 740, 63 C.C.C. (3d) 569 (B.C.C.A.).
Page 19 of 170
HC2-674 Appeals to Court of Appeal.
4 Québec (Procureur Général) v. Mathieu, [1986] Q.J. No. 8, 50 C.R. (3d) 156 (Que. C.A.).
8 Bezeredi v. Canada (Minister of Justice), [2007] B.C.J. No. 2002, 228 C.C.C. (2d) 537 (B.C.C.A.).
End of Document
Selected Secondary Sources
Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue) (Gold)
SELECTED SECONDARY SOURCES
Texts
Assessing Dangerousness: A Guide to the Dangerous Offender Application Process (looseleaf), Joseph A.
Neuberger (Carswell).
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Canada Criminal Sentencing Digest / Abrégé de jurisprudence en détermination de la peine (looseleaf), Sheila
Nemet-Brown (LexisNexis Canada).
Canadian Charter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences (looseleaf),
R.M. McLeod, Q.C., Judge J.D. Takach, Murray D. Segal & H.F. Morton, Q.C. (Carswell).
Canadian Criminal Procedure, 6th Edition (looseleaf), The Honourable Roger E. Salhany (Carswell).
Canadian Criminal Code Offences (looseleaf), John L. Gibson & Henry Waldock (Carswell).
Carswell's Forms and Precedent Collection: Criminal Law Precedents, 2nd Edition (looseleaf), The Honourable Mr.
Justice David Watt & Joseph Di Luca (Carswell).
Criminal Law Evidence, Practice and Procedure (looseleaf), John L. Gibson & Henry Waldock (Carswell).
Criminal Lawyers' Trial Book (looseleaf), The Honourable Mr. JusticeJoseph F. Kenkel (LexisNexis Canada).
Criminal Procedure: Canadian Law and Practice, 2nd Edition (looseleaf), Jeffrey E. Pearson & Lori A. Thompson
(LexisNexis Canada).
Judicial Interim Release — Bail Manual, 4th Edition (looseleaf), Keith R. Hamilton (LexisNexis Canada).
The Jury — A Handbook of Law and Procedure (looseleaf), Balfour Q.H. Der (LexisNexis Canada).
The Law of Bail in Canada, 3rd Edition (looseleaf), The Honourable Mr. Justice Gary T. Trotter (Carswell).
Mental Disorder in Canadian Criminal Law (looseleaf), Joan Barrett & The Honourable Justice Riun Shandler
(Carswell).
Procedure in Canadian Criminal Law, 2nd Edition (looseleaf), Tim Quigley (Carswell).
Page 21 of 170
Annual Review of Criminal Law 2015, Steve Coughlan, Gerry Ferguson & Michelle S. Lawrence (Carswell, 2016).
British Columbia Annual Criminal Practice, 2017 Edition, Ravi Hira, The Honourable Judge Therese Alexander,
Mary Ainslie & Micah Rankin (Canada Law Book, 2016).
Criminal Procedure, 3rd Edition, Steve Coughlan (Irwin Law, 2016).
Cross-Examination — The Art of the Advocate, 4th Edition, W. Vincent Clifford, Roger E. Salhany & Michael D.
Edelson (LexisNexis Canada, 2016).
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Marie Henein (Canada Law Book, 2016).
Martin's Ontario Criminal Practice, 2017 Edition, Marie Henein,

Edward L. Greenspan & The Honourable Justice Marc Rosenberg (Canada Law Book, 2016).
The Practitioner's Criminal Code, 2017 Edition + E-Book, Alan D. Gold (LexisNexis Canada, 2016).
Watt's Manual of Criminal Evidence 2016, The Honourable Mr. Justice

David Watt (Carswell, 2016).
Annotated Ontario Rules of Criminal Practice 2016, Murray D. Segal & The Honourable Justice Rick Libman
(Carswell, 2015).
Criminal Jury Charge Practice, Faisal Mirza (LexisNexis Canada, 2015).
The Law of Search and Seizure in Canada, 9th Edition, The Honourable Mr. Justice James A. Fontana & M. David
Keeshan (LexisNexis Canada, 2015).
Manning, Mewett & Sankoff — Criminal Law, 5th Edition, Morris Manning & Peter Sankoff (LexisNexis Canada,
2015).
The Practitioner's Ontario Criminal Practice, 2016 Edition + E-Book,

Michael W. Lacy & Alan D. Gold (LexisNexis Canada, 2015).
The 2016 Annotated Tremeear's Criminal Code, The Honourable Mr. Justice David Watt & Madam Justice Michelle
Fuerst (Carswell, 2015).
Cox's Criminal Evidence Handbook, 2014-2015 Edition, Harold J. Cox, Gregory Lafontaine & Vincenzo Rondinelli,
(Canada Law Book, 2014).
The Practitioner's Criminal Precedents, 4th Edition, Alan D. Gold (LexisNexis Canada, 2014).
Sopinka, Lederman & Bryant — The Law of Evidence in Canada, 4th Edition, The Honourable Mr. Justice Alan W.
Bryant, The Honourable Mr. Justice Sidney N. Lederman & The Honourable Madam Justice Michelle K. Fuerst
(LexisNexis Canada, 2014).
Page 22 of 170
Articles
“Reasonableness as Proportionality: Towards A Better Constructive Interpretation of the Law on Searching

Computers in Canada”, Agathon Fric (2016) 21 Appeal 59-82.
“Reconsidering the Burden of Proof in Dangerous Offender Law: Canadian Jurisprudence, Risk Assessment and
Aboriginal Offenders”, Jordan Thompson (2016), 79 Sask. L. Rev. 49-77.
“Blunting the Edge: Federalism, Criminal Law, and the Importance of Legislative History after the Reference Re
Assisted Human Reproduction Act”, Dave Snow (2015) 48 U.B.C. L. Rev. 541-92.
“The Origins, Evolution and Puzzling Irrelevance of Jury Recommendations in Second-Degree Murder Sentencing”,
Micah B. Rankin (2015) 40:2 Queen's L.J. 531-60.
“The Public Interest Criterion in Prosecutorial Discretion: A Lingering Source of Flexibility in the Canadian Criminal
Process?”, Mark Phillips (April, 2015) 36 W.R.L.S.I. 43.
“Be Careful What You Wish For? Terrorism Prosecutions in Post-9/11 Canada”, Kent Roach (2014) 40:1 Queen's
L.J. 99-140.
“Developments in Criminal Law: Criminal Procedure: The 2012-2013 Term”, Richard Litkowski and Todd Morris
(2014), 64 S.C.L.R. (2d) 113-33.
“A New Approach to the Consideration of Collateral Consequences in Criminal Sentencing”, Eric Monkman (2014)
72:2 UT Fac. L. Rev. 38- 74.
“The Sentencing of Aboriginal Accused with FASD: A Search for Different Pathways”, David Milward (2014) 47
U.B.C. L. Rev. 1025-1083.
“Wrongful Convictions: Determining Culpability When the Sand Keeps Shifting”, Bruce A. MacFarlane, Q.C. (2014)
47 U.B.C. L. Rev. 597-672.
“The Jury Vetting Cases: New Insights on Jury Trials in Criminal Cases?”, Vanessa MacDonnell (2013) 63
S.C.L.R. (2d) 419-40.
“Unreasonable Search and Seizure and Section 8 of the Charter: Cost-benefit Analysis in Constitutional
Interpretation”, Steven Penney (2013), 62 S.C.L.R. (2d) 101-142.
End of Document
HC2-596 Procedures.
HC2-596
Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue) (Gold) > XII. APPEALS AND
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (1) General
XII. APPEALS AND MISCARRIAGES OF JUSTICE
1. Appeals of Indictable Offences
(1) General
Cumulative Supplement - Current to September 15, 2018
Note 3
(CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 673, definition of "sentence" amended by S.C. 2018, c. 16, s. 220,
effective October 17, 2018, to add an order made under s. 94(1) of the (CAN) Cannabis Act, S.C. 2018, c. 16.
HC2-596 Procedures. The procedures governing appeals in respect of indictable offences are dealt with in Part
XXI of the Criminal Code.1 No proceedings other than those authorized by Part XXI and Part XXVI shall be taken by
way of appeal in proceedings in respect of indictable offences. 2
Definitions. Several terms are specifically defined for the purposes of that Part, including those found below, as
well as the term “sentence”, which includes a large number of declarations, orders, or dispositions made under
various sections of the Code. “Sentence” also includes an order made under subs. 16(1) of the Controlled Drugs
and Substances Act.3
1. “Indictment” includes an information or charge in respect of which a person has been tried for an indictable
offence under Part XIX.
2. “Registrar” means the registrar or clerk of the Court of Appeal.
3. “Court of appeal” means the Court of Appeal, as defined by the definition “court of appeal” in s. 2, for the
province or territory in which the trial of a person by indictment is held. Under that section, “court of appeal”
means the Court of Appeal of the province, except in Prince Edward Island, where it means the Appeal
Division of the Supreme Court.
4. “Trial court” means the court by which an accused was tried and includes a judge or a provincial court
judge acting under Part XIX.
Appeals. The Criminal Code in most cases has now been amended to expressly provide an appeal. While no
Page 24 of 170
HC2-596 Procedures.
appeal is provided from the decision regarding breach of a conditional sentence, the appeal available from a
disposition of re-imprisonment covers the situation where the breach was improperly found. 4
A court of appeal has jurisdiction to hear an immediate appeal by an accused from a decision regarding state-
funded counsel at a criminal trial.5
Sentence. The definition of “sentence” provided under this provision is not exhaustive. 6 Whether various orders (or
refusals of orders) constituted “sentences” under this section have been judicially considered. 7
Footnote(s)
1 (CAN) R.S.C. 1985 c. C-46, s. 673.
3 (CAN) S.C. 1996, c. 19.
4 R. v. Carpentier, [2005] M.J. No. 418, 203 C.C.C. (3d) 251 (Man. C.A.).
5 R. v. Pardy, [2014] N.J. No. 301, 315 C.C.C. (3d) 217 (N.L.C.A.).
6 R. v. Chaisson, [1995] S.C.J. No. 53, 99 C.C.C. (3d) 289 (S.C.C.).
7 R. v. Montague, [2014] O.J. No. 2654, 312 C.C.C. (3d) 1 (Ont. C.A.), leave to appeal refused [2014] S.C.C.A. No.
330 (S.C.C.);R. v. Chaisson, [1995] S.C.J. No. 53, 99 C.C.C. (3d) 289 (S.C.C.)(order for increased parole ineligibility
under s. 741.2); R. v. Sull, [2003] B.C.J. No. 1270, 176 C.C.C. (3d) 46 (B.C.C.A.); R. v. Pope, [1980] B.C.J. No. 188,
52 C.C.C. (2d) 538 (B.C.C.A.); R. v. Pawlyk, [1991] M.J. No. 150, , 65 C.C.C. (3d) 63 (Man. C.A.); R. v. Brassard,
[1992] J.Q. no 2080, 78 C.C.C. (3d) 329 (Que. C.A.).
End of Document
HC2-597 Right of appeal of person convicted — indictable offence appeals.
HC2-597
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (2) Right of Appeal > (a)
Generally
(2) Right of Appeal
(a) Generally
HC2-597 Right of appeal of person convicted — indictable offence appeals. A person who is convicted by a
trial court in proceedings by indictment may appeal to the court of appeal against his or her conviction on any
ground of appeal:
• that involves a question of law alone

7. 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
1• that is not described above that appears to the court of appeal to be a sufficient ground of appeal, with
leave of the court of appeal
Such a person may also appeal to the court of appeal 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. 1
Summary conviction appeals. A person may, with leave of the court of appeal, appeal to that court in respect of a
summary conviction or a sentence passed with respect to a summary conviction as if the summary conviction had
been a conviction in proceedings by indictment if:
• there has not been an appeal with respect to the summary conviction
1• the summary conviction offence was tried with an indictable offence, and
1• there is an appeal in respect of the indictable offence
Such an appeal shall be made pursuant to the provision above respecting appeals from indictable offence
proceedings.2
Where application for leave to appeal refused. Where a judge of the court of appeal refuses leave to appeal
under any of the provisions above, the appellant may, by filing notice in writing with the court of appeal within seven
days after the refusal, have the application for leave to appeal determined by the court of appeal.
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HC2-597 Right of appeal of person convicted — indictable offence appeals.
Exception. However, this provision does not apply where a person appeals the sentence passed against by a trial
court in proceedings by indictment and such an appeal is refused. 3
Subject-matter of appeal. Any and all decisions made in the course of criminal trial proceedings are reviewable
after conviction, including the decision of a trial judge to remove defence counsel 4 and all rulings on evidence.
Charter of Rights. The broad right of appeal from conviction includes appeals on constitutional Charter grounds. 5
Sentence. A sentence cannot be reviewed on an appeal from conviction without a sentence appeal.A sentence
appeal is appropriate where the accused seeks a discharge which was refused at trial. 6
Leave to appeal denied. Where leave to appeal in a sentence appeal has been denied in the course of an
application for bail pending appeal, it cannot be raised and re-argued again. 7
“Fixed by law”. The phrase “fixed by law” does not bar appellate review of a sentence, including a period of parole
ineligibility, where the lesser punishment provisions of Charter s. 11(i) or s. 44(e) of the Interpretation Act may apply
so as to allow possible alteration of the terms of the accused's sentence. 8
Footnote(s)
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 675(1.1).
4 R. v. Druken, [1998] S.C.J. No. 43, [1998] 1 S.C.R. 978 (S.C.C.). But such is not reviewable immediately pre-
conviction: R. v. Sandhu, [2012] B.C.J. No. 396, 279 C.C.C. (3d) 360 (B.C.C.A.).
5 R. v. W. (G.), [1999] S.C.J. No. 37, 138 C.C.C. (3d) 23 (S.C.C.).
6 R. v. Fallofield, [1973] B.C.J. No. 559, 13 C.C.C. (2d) 450 (B.C.C.A.); R. v. Christman, [1973] A.J. No. 96, 11 C.C.C.
(2d) 245n (Alta. C.A.); R. v. McInnis, [1973] O.J. No. 2124, 13 C.C.C. (2d) 471 (Ont. C.A.).
7 R. v. Perrier, [2009] N.J. No. 308, 293 Nfld. & P.E.I.R. 92 (N.L.C.A.).
8 R. v. Olah, [1997] O.J. No. 1579, 115 C.C.C. (3d) 389 (Ont. C.A.); (CAN) Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; (CAN) Interpretation
Act, R.S.C. 1985, c. I-21.
End of Document
HC2-598 Specifying grounds of dissent.
HC2-598
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (2) Right of Appeal > (a)
Generally
(2) Right of Appeal
(a) Generally
HC2-598 Specifying grounds of dissent. Where a judge of the court of appeal expresses an opinion dissenting
from the judgment of the court, the judgment of the court shall specify any grounds in law on which the dissent, in
whole or in part, is based. 1 However, a failure to specify the grounds of dissent in the formal order does not affect
the further appeal.2
Other procedural matters. With respect to parties, the joinder of a summary conviction appeal with an indictable
appeal applies even if the indictable appeal is only that of a co-accused. 3
Where an appellant dies, an appeal court has jurisdiction to allow an appeal by an accused to continue
notwithstanding his or her death. However, this will only occur in rare and exceptional circumstances. 4
Footnote(s)
2 Warkentin v. R., [1976] S.C.J. No. 75, 35 C.R.N.S. 21 (S.C.C.).
3 R. v. Thiboutot, [1999] J.Q. no 5357, 143 C.C.C. (3d) 283 (Que. C.A.); R. v. Lewis, [2008] B.C.J. No. 1489, 2008
BCCA 266 (B.C.C.A.).
4 R. v. Smith, [2004] S.C.J. No. 11, 181 C.C.C. (2d) 225 (S.C.C.).
End of Document
HC2-599 Appeal by third parties.
HC2-599
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (2) Right of Appeal > (b)
Specific Appeals
(2) Right of Appeal
(b) Specific Appeals
HC2-599 Appeal by third parties. Third parties must follow a different procedural avenue depending on the level
of court that issued the order being appealed. A provincial court order is to be challenged through an enlarged
remedy of certiorari, which falls within the ambit of superior courts. This decision can then be appealed through the
regular channels of the judicial system. On the other hand, where a court order is issued by a superior court judge
in the first instance third parties can challenge it by seeking leave to appeal directly to the Supreme Court, pursuant
to subs. 40(1) of the Supreme Court Act.1 These procedures were outlined initially with regard to publication bans
but they generally apply to other court orders related to criminal proceedings. 2
Appeal against absolute term in excess of 10 years. A person who has been convicted of second degree
murder and sentenced to imprisonment for life without eligibility for parole for a specified number of years, and the
number of specified years exceeds 10, the person may appeal to the court of appeal against those years in excess
of 10.3
Appeal against section 743.6 order. Where an order has been made pursuant to s. 743.6 to delay the period
before an offender may receive full parole, that person may appeal to the court of appeal against the order. 4
Persons under 18. A person who was under the age of 18 at the time of the commission of the offence for which
the person was convicted of first degree murder or second degree murder and sentenced to imprisonment for life
without eligibility for parole until the person has served the period specified by the judge presiding at the trial may
appeal to the court of appeal against the number of years in excess of the minimum number of years of
imprisonment without eligibility for parole that are required to be served in respect of that person's case. 5
Appeal against section 745.51(1) order. A person against whom an order under subs. 745.51(1), which permits a
judge to order consecutive periods of parole ineligibility with respect to persons who are being sentenced for life
must and have also previously been convicted for murder, may appeal to the court of appeal. 6
Appeals against verdicts based on mental disorder. Where a verdict of not criminally responsible on account of
mental disorder or unfit to stand trial is rendered in respect of a person, that person may appeal to the court of
Page 29 of 170
HC2-599 Appeal by third parties.
appeal against that verdict on any ground of appeal mentioned above in relation to appeals from indictable offence
convictions, and subject to the conditions described therein. 7
Footnote(s)
1 (CAN) R.S.C. 1985, c. S-26.
2 A. (L.L.) v. B. (A.), [1995] S.C.J. No. 102, [1995] 4 S.C.R. 536 (S.C.C.); Dagenais v. Canadian Broadcasting Corp.,
[1994] S.C.J. No. 104, [1994] 3 S.C.R. 835 (S.C.C.).

End of Document
HC2-600 Right of Attorney General to appeal.
HC2-600
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (2) Right of Appeal > (c)
Appeal by Attorney General > (i) General
(2) Right of Appeal
(c) Appeal by Attorney General
(i) General
HC2-600 Right of Attorney General to appeal. The Attorney General or counsel instructed by him may appeal to
the court of appeal against the following: 1
• 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
8. 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
2• an order of a trial court that stays proceedings on an indictment or quashes an indictment, or
• with leave of the court of appeal or a judge thereof, the sentence passed by a trial court in proceedings by
indictment, unless that sentence is one fixed by law
Summary conviction appeals. The Attorney General or counsel instructed by him may, with leave of the court of
appeal, appeal to that court in respect of a verdict of acquittal in a summary conviction proceeding or a sentence
passed with respect to a summary conviction if the summary offence proceeding was a proceeding by indictment if:
2• there has not been an appeal with respect to the summary conviction
2• the summary conviction offence was tried with an indictable offence, and
1• there is an appeal in respect of the indictable offence
Such an appeal shall be made pursuant to the preceding provision above respecting appeals by the Attorney
General from indictable offence proceedings.2
Acquittal. For the purposes of this section, a judgment or verdict of acquittal includes an acquittal in respect of an
Page 31 of 170
HC2-600 Right of Attorney General to appeal.
offence specifically charged where the accused has, on the trial thereof, been convicted or discharged under s. 730
of any other offence.3
Trial court. A provincial court judge dealing with a hybrid offence prior to an election by the Crown and the
accused is not “a trial court”.4 A youth court judge who stays proceedings upon an information as an abuse of
process is “a trial court”.5 So is a judge of the Court of Québec who stays proceedings prior to plea and preferment
of the indictment.6
Footnote(s)
4 R. v. O'Leary, [1991] N.J. No. 133, 64 C.C.C. (3d) 573 (Nfld. C.A.); R. v. Persaud, [1989] O.J. No. 2015, 52 C.C.C.
(3d) 464 (Ont. C.A.).
5 R. v. B. (I.), [1994] O.J. No. 2100, 93 C.C.C. (3d) 121 (Ont. C.A.).
6 R. v. Brassard, [1992] J.Q. no 2080, 78 C.C.C. (3d) 329 (Que. C.A.).
End of Document
HC2-601 Appeal against verdict of unfit to stand trial.
HC2-601
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (2) Right of Appeal > (c)
Appeal by Attorney General > (ii) Specific Appeals
(2) Right of Appeal
(c) Appeal by Attorney General
(ii) Specific Appeals
HC2-601 Appeal against verdict of unfit to stand trial. </mnote>The Attorney General or counsel instructed by
him for the purpose may appeal to the court of appeal against a verdict that an accused is unfit to stand trial, on any
ground of appeal that involves a question of law alone. 1
Appeal against ineligible parole period. Where a person has been convicted of second degree murder, the
Attorney General or counsel instructed by him may appeal against the number of years of imprisonment without
eligibility for parole, being less than 25, that has been imposed as a result of that conviction. 2
Appeal against decision not to make section 743.6 or 745.51 order. Where a court decides not to make an
order to delay the period before an offender may receive full parole under s. 743.6, the Attorney General or counsel
instructed by him may appeal to the court of appeal against such a decision. 3 In the same way an appeal may be
brought with respect to an order under s. 745.51 to impose consecutive orders of parole ineligibility with respect to a
person convicted for a second offence of murder. 4
Verdict of acquittal. The dismissal of a charge on the basis that the law upon which the charge was founded is
invalid or ultra vires amounts to a verdict of acquittal that is appealable. 5 The dismissal of a charge on a plea of
autrefois acquit is an acquittal.6 The declaration of a mistrial because evidence showed the value of the item
allegedly stolen was under the higher court limit is not a judgment or verdict of acquittal from which the prosecution
can appeal.7 There is no appeal by the Crown from a finding that an allegation of breaching a term of a conditional
sentence was not proven.8
Charter of Rights. The Crown's right of appeal from acquittal is constitutional. 9 In one case, the Crown was
allowed to appeal the sentence even though Crown counsel at trial apparently gave an undertaking not to appeal. 10
Failure to exercise jurisdiction. The Crown pursuant to s. 676(1)(b) can appeal a sentencing judge's refusal to
make a mandatory Sex Offender Information Registration Act (“SOIRA”) order.11
Page 33 of 170
HC2-601 Appeal against verdict of unfit to stand trial.
Footnote(s)
5 Cheyenne Realty Ltd. v. Thompson, [1981] B.C.J. No. 660, 15 C.C.C. (2d) 49 (S.C.C.); R. v. Kripps Pharmacy Ltd.,
[1981] B.C.J. No. 660, 60 C.C.C. (2d) 332 (B.C.C.A.).
6 R. v. Sanver, [1973] N.B.J. No. 53, 12 C.C.C. (2d) 105 (N.B.C.A.).
7 R. v. Holliday, [1973] A.J. No. 22, 12 C.C.C. (2d) 56 (Alta. C.A.).
8 R. v. Cross, [2004] N.S.J. No. 508, 192 C.C.C. (3d) 415 (N.S.C.A.).
9 R. v. Morgentaler, [1985] O.J. No. 2662, 22 C.C.C. (3d) 353 (Ont. C.A.), revd in part on other grounds [1988] S.C.J.
No. 1, 37 C.C.C. 449 (S.C.C.).
10 R. v. Ryazanov, [2008] O.J. No. 3816, 237 C.C.C. (3d) 19 (Ont. C.A.).
11 R. v. Whiting, [2013] S.J. No. 710, 304 C.C.C. (3d) 342 (Sask. C.A.).
End of Document
HC2-602 Question of law alone.
HC2-602
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (2) Right of Appeal > (d)
Questions of Law and Fact
(2) Right of Appeal
(d) Questions of Law and Fact
HC2-602 Question of law alone. On an appeal from acquittal, an appellate court has no jurisdiction to consider
the reasonableness of a trial judge's verdict.1 A finding of fact is only appealable by an accused. 2
Application of legal standard. The interpretation or application of a legal standard (such as a condition precedent
for a lawful wiretap or the standard of review of wiretaps by the trial judge) is a question of law. 3 Whether certain
conduct constitutes an offence under the Code is a question of law. The true meaning to be attributed to the
interrelation of two sections of the Code also raises a question of law alone. 4 Where, on the evidence accepted by
the trial judge, the prosecution has in fact proved the elements of the offence, it is then error in law to acquit. 5
If a trial judge finds all the facts necessary to reach a conclusion in law, or those facts are not in dispute, a court of
appeal does not trespass on the fact-finding function of the trial judge by disagreeing with the trial judge's
conclusion. Such a disagreement involves a question of law, and not any facts, or factual inferences. It is an error of
law where the trial judge fails to appreciate or consider relevant evidence because of a misapprehension of a legal
principle.6
The Supreme Court recently provided the following “non-exhaustive” list of categories of permissible Crown
appeals from acquittals:7
(1) It Is an Error of Law to Make a Finding of Fact for Which There Is No Evidence — However, a Conclusion That the Trier
of Fact Has a Reasonable Doubt Is Not a Finding of Fact for the Purposes of This Rule.
An acquittal (absent some fact or element on which the accused bears the burden of proof) is not a finding of fact but
instead a conclusion that the standard of persuasion beyond a reasonable doubt has not been met. Moreover, … a
reasonable doubt is logically derived from the evidence or absence of evidence. …
(2) The Legal Effect of Findings of Fact or of Undisputed Facts Raises a Question of Law
(3) An Assessment of the Evidence Based on a Wrong Legal Principle Is an Error of Law
(4) The Trial Judge's Failure to Consider All of the Evidence in Relation to the Ultimate Issue of Guilt or Innocence Is an
Page 35 of 170
Error of Law
The question of law alone in a prosecution appeal must be directly and concretely related to the acquittal in
question.8 The prosecutor cannot except in limited circumstances repudiate the position taken by the Crown at trial, 9
or in general introduce new evidence on a sentence appeal. 10
Examples. The following are examples of questions of law:
• Whether a verdict was reasonable within s. 686(1)(a)(i). A dissent is a question of law whether the dissent
is based on the formulation of the applicable test or the application of the test to the facts of the case. 11
9. Whether on the facts as found by the trial judge there was a breach of a Charter right under s. 11(b). 12
3• Whether evidence should be excluded under s. 24(2). 13
The following are examples of questions of fact:
• Whether the proper inference has been drawn from the facts established in evidence, and the sufficiency of
evidence.14
3• Whether a jury verdict was perverse on a question of fact. 15
3• Whether the accused's acts were done with a guilty state of mind, and whether the Crown had proved
guilty intent.16
The following is an example of questions of mixed law and fact:
2• Finding that certain documents were not obscene.17
Sentence. The prosecutor may appeal the grant of a discharge, with leave, as a matter of sentence, or, as of right,
on a question of law alone, the right of the court to grant the discharge. 18 A judge's decision at a default hearing in
respect of an unpaid fine is not “a sentence passed by a trial court” that may be appealed under s. 676(1)(d). 19
Footnote(s)
1 R. v. Kent, [1994] S.C.J. No. 83, 92 C.C.C. (3d) 344 (S.C.C.); R. v. D.(R.), [2006] S.C.J. No. 51, [2006] 2 S.C.R. 610
(SC.C.).
2 R. v. Whynot (Stafford), [1983] N.S.J. No. 544, 9 C.C.C. (3d) 449 (N.S.C.A.); R. v. Poirier, [1998] S.C.J. No. 4,
[1998] 1 S.C.R. 24 (S.C.C.).
3 R. v. Araujo, [2000] S.C.J. No. 65, [2000] 2 S.C.R. 992 (S.C.C.).
4 Johnson v. R., [1973] S.C.J. No. 155, 13 C.C.C. (2d) 402 (S.C.C.); R. v. Mara, [1997] S.C.J. No. 29, 115 C.C.C. (3d)
539 (S.C.C.).
5 R. v. Davis, [1973] O.J. No. 964, 14 C.C.C. (2d) 517 (Ont. C.A.), affd [1977] S.C.J. No. 13, 33 C.C.C. (2d) 496
(S.C.C.).
6 R. v. Morin, [1992] S.C.J. No. 7, 76 C.C.C. (3d) 193 (S.C.C.).
7 R. v. H. (J.M.), [2011] S.C.J. No. 45 at paras. 24-39, 276 C.C.C. (3d) 197 (S.C.C.).
8 R. v. Huot, [1968] M.J. No. 7, [1969] 1 C.C.C. 256 (Man. C.A.); R. v. Watterson, [1987] O.J. No. 528, 21 O.A.C. 296
(Ont. C.A.).
Page 36 of 170
9 R. v. Agozzino, [1968] O.J. No. 1362, , [1970] 1 C.C.C. 380 (Ont. C.A.); R. v. MacArthur, [1978] P.E.I.J. No. 95, 39
C.C.C. (2d) 158 (P.E.I.C.A.); R. v. Smith, [1981] A.J. No. 52, 25 C.R. (3d) 190 (Alta. C.A.); R. v. Cooper, [1997] N.J.
No. 186, 117 C.C.C. (3d) 249 (Nfld. C.A.).
10 R. v. Irwin, [1979] A.J. No. 63, 48 C.C.C. (2d) 423 (Alta. C.A.).
11 R. v. Biniaris, [2000] S.C.J. No. 16, [2000] 1 S.C.R. 381 (S.C.C.).
12 R. v. Heaslip, [1983] O.J. No. 172, 9 C.C.C. (3d) 480 (Ont. C.A.); or s. 10(b): R. v. Baig, [1985] O.J. No. 150, 20
C.C.C. (3d) 515 (Ont. C.A.); R. v. Anderson, [1984] O.J. No. 3100, 10 C.C.C. (3d) 417 (Ont. C.A.).
13 R. v. Genest, [1989] S.C.J. No. 5, 45 C.C.C. (3d) 385 (S.C.C.).
14 R. v. Kent, [1994] S.C.J. No. 83, 92 C.C.C. (3d) 344 (S.C.C.).
15 R. v. Whynot (Stafford), [1983] N.S.J. No. 544, 9 C.C.C. (3d) 449 (N.S.C.A.); R. v. Poirier, [1998] S.C.J. No. 4,
[1998] 1 S.C.R. 24 (S.C.C.).
16 Lampard v. R., [1969] S.C.J. No. 3, [1969] 3 C.C.C. 249 (S.C.C.); Schuldt v. R., [1985] S.C.J. No. 76, 23 C.C.C. (3d)
225 (S.C.C.), revg [1983] M.J. No. 142, 23 Man. R. (2d) 75 (Man. C.A.).
17 R. v. Huot, [1968] M.J. No. 7, [1969] 1 C.C.C. 256 (Man. C.A.); R. v. Watterson, [1987] O.J. No. 528, 21 O.A.C. 296
(Ont. C.A.).
18 Hunt v. R., [1979] S.C.J. No. 32, 45 C.C.C. (2d) 257 (S.C.C.).
19 R. v. Druet, [2001] N.B.J. No. 395, 159 C.C.C. (3d) 445 (N.B.C.A.).
End of Document
HC2-603 Appeal regarding costs.
HC2-603
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (2) Right of Appeal > (e)
Appeals of Costs
(2) Right of Appeal
(e) Appeals of Costs
Note 6
See also R. v. Johannesson, [2016] A.J. No. 501, 2016 ABCA 158 (Alta. C.A.).
HC2-603 Appeal regarding costs. A party who is ordered to pay costs may, with leave of the court of appeal or a
judge of a court of appeal, appeal the order or the amount of costs ordered. 1
Timing. The right to appeal arises as soon as the costs order is made. However, such appeals should not routinely
be heard prior to the completion of the trial. The policy reasons which discourage interlocutory appeals apply with
full force to most appeals launched from costs orders. This is particularly true where the merits of the costs order
are intertwined with the merits of an issue that can only be appealed at the end of the trial. Where a costs order is
appealed before the end of the trial, it is always open to the court to direct that the appeal should not be heard until
the completion of the proceedings in the trial court. In most cases that will be the appropriate order. 2
Costs orders. This section provides a right of appeal for the party against whom a costs order was made, and
does not provide an appeal where an application for payment of costs were denied by the court. 3 “Costs” under this
provision includes not only the disbursements and fees incurred in the course of proceedings and interlocutory
matters in the courts that have already concluded, it also includes obligations to make future payments imposed by
judicial decision, such as the Rowbotham orders for the appointment of state-funded counsel. 4
Despite this provision, a summary conviction appeal court has jurisdiction to entertain an appeal from the award of
costs against the Crown made pursuant to s. 24 of the Charter under s. 830 of the Code. 5
Page 38 of 170
HC2-603 Appeal regarding costs.
Jurisdiction to order costs. There appears to be a clear distinction in the cases between situations where the
court is ordering costs pursuant to its inherent jurisdiction to control its own officers and its own process, and cases
where a remedy is being granted by a court under subs. 24(1) of the Charter. Consequent upon a mistrial, courts
have on occasion ordered costs against the Crown as a compensatory remedy under a costs-thrown-away
analysis. It is a power that was exercised only rarely and only where there had been serious misconduct on the part
of the Crown. It was not reasonable for the judge to order costs where the Crown's failure to disclose the records
was a result of inadvertence, not a deliberate act. 6
Footnote(s)
2 R. v. Clement, [2002] O.J. No. 2177, 166 C.C.C. (3d) 219 (Ont. C.A.).
3 R. v. C. (R.), [2002] S.C.J. No. 53, [2002] 2 S.C.R. 762 (S.C.C.).
4 R. v. C. (R.), [2002] S.C.J. No. 53, [2002] 2 S.C.R. 762 (S.C.C.); R. v. Cai, [2002] A.J. No. 1521, 170 C.C.C. (3d) 1
(Alta. C.A.); R. v. Kimmie, [2005] S.J. No. 727, 2005 SKQB 507 (Sask. Q.B.).
5 R. v. Krueger, [2006] A.J. No. 177, 206 C.C.C. (3d) 390 (Alta. C.A.).
6 R. v. Bhatti, [2006] B.C.J. No. 24, 204 C.C.C. (3d) 463 (B.C.C.A.).See also R. v. McMeekin, [2012] A.J. No. 773,
2012 ABQB 472 (Alta. Q.B.); R. v. Malik, [2012] B.C.J. No. 1442, 2012 BCSC 1002 (B.C.S.C.).
End of Document
HC2-604 Notice of appeal.
HC2-604
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (3) Procedure on Appeal
> (a) General
(3) Procedure on Appeal
(a) General
HC2-604 Notice of appeal. A potential appellant to the court of appeal is to give notice of the appeal or notice of
the application to seek leave to appeal in such a manner, and within such period, as may be directed by the rules of
court.1 However, the court of appeal or a judge thereof may at any time extend the time within which such notice
may be given.2
Service where respondent cannot be found. </mnote>Where a respondent cannot be found after reasonable
efforts have been made to serve them with a notice of appeal or notice of an application for leave to appeal, service
may be effected substitutionally in the manner and within the period directed by a judge of the court of appeal. 3
Extension of time. In general, an applicant can obtain an extension of time in which to appeal by establishing a
bona fide intention to appeal within the appeal period; accounting for or explaining the delay; and satisfying the
appeal court that the proposed appeal has merit and is not frivolous. 4 There is precedent for extending time for the
Crown or the accused to appeal in cases where illegal sentences had been imposed. 5 It assists if the applicant has
previously notified the respondent of the intention to appeal. 6 Other relevant factors include: whether the
consequences of conviction are out of all proportion to the penalty imposed; whether the respondent will be
prejudiced by any extension of time; and whether the applicant has taken the benefit of the judgment. 7 Serious and
unexpected consequences of the accused's guilty pleas can justify an extension of time. 8 “In the end, the main
consideration is whether the applicant has demonstrated that justice requires that the extension of time be
granted”,9 such as “where the consequences of a conviction and/or sentence, not known at the time the conviction
and/or sentence was handed down, are profoundly disproportionate”. 10 A change in immigration implications of a
conviction can warrant an extension of time to appeal. 11 In one case, a Crown application for an extension of time to
appeal was dismissed where the Crown only formed the intention to appeal in response to an appeal filed by the
accused.12
Jurisidiction. A Court of Appeal has jurisdiction to rescind a previous order, even one made by a full court of three
judges, refusing an extension of time to appeal where the interests of justice so require. 13
New evidence or change of circumstances. An applicant refused an extension by a single judge of the court of
appeal may reapply to a panel of the court if the renewed application for an extension is based on new evidence or
Page 40 of 170
HC2-604 Notice of appeal.
the further application is on a genuinely different basis not available the first time. 14 The panel cannot simply review
the single judge's refusal.15 An applicant can also re-apply before any judge of the court of appeal and not only the
judge who heard the first application. 16 The panel or second judge must be satisfied that “circumstances have
changed since the earlier refusals”. The production of a transcript can constitute a change of circumstances. 17
Footnote(s)
4 R. v. Junkert, [2009] O.J. No. 2979, 2009 ONCA 922 (Ont. C.A.); R. v. Menear, [2002] O.J. No. 244, 162 C.C.C.
(3d) 233 (Ont. C.A.). This is just a general rule, and there is no absolute rule when the statutory discretion should or
should not be exercised: R. v. Price, [2010] O.J. No. 3258, 2010 ONCA 541 (Ont. C.A.).
5 R. v. R. (M.J.), [2007] N.S.J. No. 139, 2007 NSCA 35 (N.S.C.A.).
6 R. v. Meidel, [2000] B.C.J. No. 545, 148 C.C.C. (3d) 437 (B.C.C.A.).
7 R. v. Hetsberger, [1979] O.J. No. 1818, 47 C.C.C. (2d) 154 (Ont. C.A.); R. v. G. (M.A.), [2002] B.C.J. No. 1477, 167
C.C.C. (3d) 435 (B.C.C.A.).
8 R. v. Hayes, [2007] O.J. No. 4624, 226 C.C.C. (3d) 417 (Ont. C.A.); R. v. Gaudreault, [1992] J.Q. no 1228, 76
C.C.C. (3d) 188 (Que. C.A.).
9 R. v. Junkert, [2009] O.J. No. 2979, 2009 ONCA 922 (Ont. C.A.); R. v. Menear, [2002] O.J. No. 244 at para. 21, 162
C.C.C. (3d) 233 (Ont. C.A.); R. v. Garland, [2008] O.J. No. 868, 2008 ONCA 134 (Ont. C.A.).
10 R. v. Hayes, [2007] O.J. No. 4624 at para. 20 (Ont. C.A.).
11 R. v. Leung, [2003] A.J. No. 878, 2003 ABCA 222 (Alta. C.A.).
12 R. v. Venkatesh, [2007] O.J. No. 1300 (Ont. S.C.J.).
13 R. v. Audy (No. 1), [1977] O.J. No. 368, 34 C.C.C. (2d) 228 (Ont. C.A.); as does a single judge have jurisdiction to
rescind his own order: R. v. Dunbrook, [1978] O.J. No. 2127, 44 C.C.C. (2d) 264 (Ont. C.A.).
14 R. v. Miller, [2000] B.C.J. No. 1094, 147 C.C.C. (3d) 156 (B.C.C.A.); R. v. Walker, [1978] Q.J. No. 206, 46 C.C.C.
(2d) 124 (Que. C.A.).
15 R. v. Melanson, [2006] N.B.J. No. 360 at para. 25, 305 N.B.R. (2d) 91 (N.B.C.A.). “This is because the motion is a
fresh motion and not a motion for reconsideration.”
16 R. v. Giesbrecht, [2008] M.J. No. 311, 237 C.C.C. (3d) 203 (Man. C.A.); R. v. O'Malley, [1997] B.C.J. No. 2048, 119
C.C.C. (3d) 360 (B.C.C.A.); R. v. Harness, [2005] A.J. No. 866, 200 C.C.C. (3d) 431 (Alta. C.A.).
17 R. v. Melanson, [2006] N.B.J. No. 360 at para. 3, 305 N.B.R. (2d) 91 (N.B.C.A.).
End of Document
HC2-605 Release pending determination of appeal.
HC2-605
> (b) Release from Custody Pending Appeal > (i) General
(b) Release from Custody Pending Appeal
(i) General
HC2-605 Release pending determination of appeal. A judge of the court of appeal may, in accordance with this
section, release an appellant from custody pending the determination of his appeal where certain requirements are
met. Those requirements vary depending upon the nature of the appeal being made.
In the case of an appeal to the court of appeal against conviction, if the appellant has given the required notice of
appeal or notice of application for leave to appeal, then the accused may be released. In the case of an appeal to
the court of appeal against sentence only, then the judge may release the appellant only where he or she has been
granted leave to appeal. In the case of an appeal or application for leave to appeal to the Supreme Court of
Canada, the judge may only release the appellant where that person has served his or her notice of appeal or
where leave is required, his or her application for leave to appeal. 1
This section applies to applications for leave to appeal and appeals to the Supreme Court of Canada in summary
conviction proceedings.2
Notice of application for release. Where an appellant applies to a judge of the court of appeal to be released
pending the determination of his or her appeal, written notice of the application shall be given by the appellant to the
prosecutor or to such other person as a judge of the court of appeal directs. 3
Circumstances where appellant may be released. In the case of an appeal to the court of appeal against
conviction, or an appeal or an application for leave to appeal to the Supreme Court of Canada, the judge of the
court of appeal may order that the appellant be released pending the determination of his or her appeal if the
appellant establishes the following:4
• that the appeal or application for leave to appeal is not frivolous

10. that the appellant will surrender himself or herself into custody in accordance with the terms of the order,
and
Page 42 of 170
HC2-605 Release pending determination of appeal.
4• that the appellant's detention is not necessary in the public interest
In the case of an appeal to the court of appeal against sentence only, the judge of the court of appeal may order
that the appellant be released pending the determination of his or her appeal or until otherwise ordered by a judge
of that court if the appellant establishes the following: 5
• that the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he
were detained in custody
4• that the appellant will surrender himself or herself into custody in accordance with the terms of the order;
and
4• that the appellant's detention is not necessary in the public interest
On an application for release pending a sentence appeal the merit-based component for s. 679(4)(a) and (c) is the
same. An applicant who is not a flight risk under s. 679(4)(b) or a threat to the safety of the community under s.
679(4)(c) is entitled to bail if his or her appeal has a moderate chance of success. 6
Conditions of order of release. Where the judge of the court of appeal makes a decision to release the appellant,
the judge shall only do so where the appellant either enters into a recognizance or gives the appropriate
undertaking to the judge. Such an undertaking may be with or without such conditions as the judge directs, and
shall contain an undertaking by the appellant that he or she will surrender himself or herself into custody in
accordance with the order. A recognizance entered into under this provision shall be in such amount and subject to
such conditions, if any, and before such justice as the judge directs. It may require one or more sureties, a deposit
of money or other valuable security, both sureties and deposit, or neither sureties nor deposit. 7
Footnote(s)
6 R. v. Watts, [2016] A.J. No. 458, 2016 ABCA 139 (Alta. C.A.).
7 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 679(5); the judge may direct that the undertaking or recognizance
referred to in this provision include the conditions described in subs. 515(4), (4.1) and (4.2) that the judge considers
desirable (s. 679(6)).
End of Document
HC2-606 Who has jurisdiction.
HC2-606
> (b) Release from Custody Pending Appeal > (ii) Jurisdiction
(ii) Jurisdiction
HC2-606 Who has jurisdiction. The court of appeal has jurisdiction to order release pending appeal of conviction
even prior to sentencing where the accused has been remanded into custody by the trial court pending sentencing. 1
The release jurisdiction applies to an appellant released on day parole. 2 But there is no jurisdiction to grant bail to
an unsentenced offender not yet in custody.3
Breach of order. A single judge of the court of appeal has jurisdiction to hear the prosecutor's application to
revoke under s. 524 an accused's bail order made by a judge of the court of appeal pending his new trial on a
charge of murder.4 The issuance of a warrant for an accused alleged to have breached an order for release pending
appeal requires that the accused still be bound by the recognizance at the time of the application. 5
Footnote(s)
1 R. v. MacIntosh, [2010] N.S.J. No. 448, 293 N.S.R. (2d) 327 (N.S.C.A); R. v. Smale, [1979] O.J. No. 1181, 51
C.C.C. (2d) 126 (Ont. C.A.); R. v. Hart, [1998] N.S.J. No. 313, 128 C.C.C. (3d) 221 (N.S.C.A.).
2 R. v. Wood, [1999] N.S.J. No. 347, 139 C.C.C. (3d) 468 (N.S.C.A.).
3 R. v. Barbour, [2016] A.J. No. 521, 2016 ABCA 161 (Alta. C.A.).
4 R. v. Parsons, [1997] N.J. No. 337, 124 C.C.C. (3d) 92 (Nfld. C.A.).
5 R. v. Dosch, [2000] O.J. No. 1669, 145 C.C.C. (3d) 348 (Ont. C.A.); R. v. U. (F.J.), [1995] O.J. No. 133, 95 C.C.C.
(3d) 408 (Ont. C.A.).
End of Document
HC2-607 Application of certain provisions of section 525.
HC2-607
> (b) Release from Custody Pending Appeal > (iii) Application of Other Code Sections
(iii) Application of Other Code Sections
HC2-607 Application of certain provisions of section 525. The provisions of subs. 525(5), (6) and (7) apply
with such modifications as the circumstances require in respect of a person who has been released from custody
pursuant to the above. Those subsections provide for the issuing of an arrest warrant or the arrest of the appellant
without a warrant where it is believed that the appellant has either contravened, or is about to contravene, the
undertaking or recognizance on which he has been released, or has committed an indictable offence after his
release. They also provide an accused who has been taken into custody pursuant to such a warrant or arrest with a
hearing to show why such detention is not justified. 1
Release or detention pending hearing or reference. The provisions of this section also apply to any person in
respect of whom the Minister of Justice has given a direction or made a reference under s. 696.3. They apply in
respect of that person's release or detention pending the hearing and determination of the reference as though that
person were an appellant in an appeal to the court of appeal against conviction. 2
Release or detention pending new trial or new hearing. Where a new trial is ordered by the court of appeal or
the Supreme Court of Canada with respect to any person, the sections providing for judicial interim release apply to
the release or detention of that person pending the new trial or new hearing as though that person were charged
with the offence for the first time. However, the powers of a justice or a judge under those sections are to be
exercised by a judge of the court of appeal.3
Directions for expediting appeal, new trial, etc. Where a judge of the court of appeal refuses an application for
release pending determination of an appeal, or where he cancels an order previously made under this section, that
judge may give such directions as he thinks necessary for expediting the hearing of the appellant's appeal or for
expediting the new trial or new hearing or the hearing of the reference, as the case may be. Such directions may
also be given by a judge of the Supreme Court of Canada on application by an appellant in the case of an appeal to
that Court.4
Page 45 of 170
HC2-607 Application of certain provisions of section 525.
Footnote(s)
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 679(7.1); the sections dealing with judicial interim release referred to in
this provision are ss. 515 and 522.
End of Document
HC2-608 Material change in circumstances.
HC2-608
> (b) Release from Custody Pending Appeal > (iv) Grounds for Release
(iv) Grounds for Release
Note 11
See also R. v. Oland, [2017] S.C.J. No. 17, 2017 SCC 17 (S.C.C.), where the Supreme Court of Canada clarified
the public confidence component of "public interest". In determining how a bail pending appeal order is likely to
affect public confidence in the administration of justice, the Court held that the competing interests of enforceability
and reviewability must be balanced through a consideration of factors such as the seriousness of the crime, the
absence of flight or public safety risks, and the strength of the appeal. Furthermore, when balancing these factors,
public confidence is to be measured through the eyes of a reasonable member of the public.
HC2-608 Material change in circumstances. An appellant, after the denial of his bail application under this
section, may make a second application under the section to a single judge of the court of appeal where there is a
material change in circumstances. It is usually preferable for the judge who heard and dismissed the initial
application to hear subsequent applications for bail, but there is no hard and fast rule. The issues raised in the
second application may be such as to make it unnecessary to bring the application back before the same judge.
The judge before whom the second application is brought must exercise their discretion and determine whether
justice requires that the second application be heard by the judge who heard the first application. For there to be a
material change in circumstances, there must be information that could alter the assessment of one or more of the
statutory factors governing release pending appeal. Usually, subsequent applications based on an alleged change
in circumstances depend upon some event which occurred between the initial application and the subsequent
application. On occasion, subsequent applications are brought when a part of the trial record becomes available
Page 47 of 170
and adds significant weight to the merits of the appeal. In rare cases a rearticulation of arguments previously made
supplemented by a new ground of appeal amount to a material change in circumstances which affect the outcome
of the public interest inquiry required under para. 679(3)(c). Where there is a material change, a judge of appeal
must consider all the statutory grounds, and consider whether the appellant has met the onus in subs. 679(3). 1
Grounds for release. Pursuant to s. 679 of the Criminal Code there are three requirements for bail pending
appeal: (a) the appeal is not frivolous; (b) the appellant will surrender into custody as ordered; and (c) detention is
not necessary in the public interest. It has been said that release should be granted unless some factor(s) would
cause ordinary, reasonable, fair-minded members of society or persons informed about the philosophy of the
legislation, Charter values and the actual circumstances of the case to believe that detention is required to maintain
public confidence in the administration of justice. The relevant circumstances are those of the offence and
offender.2 The standard of frivolousness has two aspects: an appeal brought for purposes other than succeeding on
appeal, and an appeal with no reasonable prospect of success. 3 An applicant need show only that the grounds of
appeal would not necessarily fail.4 “Where, however, the applicant for judicial interim release pending appeal is a
flight risk (not alleged in this case), or where there are public interest concerns, an appeal that merely satisfies the
'not frivolous' requirement will, in some circumstances, be insufficient to warrant release. The presiding justice of
appeal must balance competing considerations. … An applicant who is a serious flight risk and/or a danger to the
public, and about whose appeal one could only say: 'it will not necessarily fail', may not be able to persuade the
court that judicial interim release is appropriate.” 5
Supreme Court of Canada. On an application for release pending an application for leave to appeal to the
Supreme Court of Canada, the test is the same as on an application for release pending appeal. 6 Application can
be made upon filing and service of the notice of application for leave to appeal setting out the grounds on which
leave to appeal will be sought, notwithstanding that all documents required under Rule 23(1) of the Rules of the
Supreme Court of Canada7 have not been filed and served.
Public interest. It has been held that “public interest” includes at least two aspects: public safety, concerned with
the risk of future criminality, and “public confidence”, concerned with whether a reasonable, knowledgeable, fair-
minded person might lose confidence in the administration of justice if release were granted (or, it should be added,
might lose confidence if release is not granted when warranted). As part of the confidence issue the weight of
authority states that it includes a qualitative assessment of the grounds of appeal over and above the “not frivolous”
requirement, as well as a consideration of undue appeal delay if such may occur. The public interest ground is
especially important in cases where the accused has been convicted of a very serious offence and faces the
prospect of long-term imprisonment.8 While it appears that some evaluation of the strength of the grounds of appeal
is relevant to the public interest ground, 9 the “public interest” does not necessarily require the accused to show a
ground of appeal that suggests a strong probability of success. 10 The “public interest” requirement in s. 679(3)(c) is
not unconstitutionally vague.11
Extradition. In extradition cases, the requirement in s. 679(3)(a) is inapplicable since the applicant has not been
convicted of anything,12 or, if applicable, should be recast to read “whether the issues raised in the applicant's
submissions … are not frivolous”.13
Release pending new trial. The court of appeal has exclusive jurisdiction between the time of the order for the
new trial and the accused's appearance in the trial court. Once the accused has appeared in the court before which
the new trial is to be held, the bail application can and in fact should be brought in the trial court. 14 After an accused
has obtained bail pending a new trial from a judge of the court of appeal, thereafter any bail variations should be
dealt with in the trial court. 15 Review of a decision regarding release pending a new trial after the accused has
appeared in the trial court may be brought in the trial court under s. 520 or the court of appeal under s. 680. 16
Subsection 679(7) is constitutionally invalid to the extent that it applies to a person who has been granted a new
trial by
the court of appeal. Judicial interim release is determined under ss. 515(10) and 522. 17
Page 48 of 170
Footnote(s)
1 R. v. Daniels, [1997] O.J. No. 4023, 119 C.C.C. (3d) 413 (Ont. C.A.).
2 R. v. Nguyen, [1997] B.C.J. No. 2121, 119 C.C.C. (3d) 269 (B.C.C.A. (In Chambers)); R. v. S. (C.V.), [2003] N.B.J.
No. 4 (N.B.C.A.).
3 R. v. McPherson, [1999] B.C.J. No. 2489, 140 C.C.C. (3d) 316 (B.C.C.A. In Chambers)).
4 R. v. P. (D.M.), [1997] A.J. No. 1151, 121 C.C.C. (3d) 444 (Alta. C.A.); R. v. McNaughton, [2010] A.J. No. 317, 2010
ABCA 97 (Alta. C.A.) (detailed listing of relevant factors).
5 R. v. Rhyason, [2006] A.J. No. 376 at para. 10, 2006 ABCA 120 (Alta. C.A.).
6 R. v. Ilina, [2003] M.J. No. 41, 172 C.C.C. (3d) 568 (Man. C.A. (In Chambers)); R. v. Zundel, [1990] O.J. No. 300, 54
C.C.C. (3d) 400 (Ont. C.A.).
7 SOR/2002-156.
8 R. v. Baltovich, [2000] O.J. No. 987, 144 C.C.C. (3d) 233 (Ont. C.A. (In Chambers)); R. v. McNaughton, [2010] A.J.
No. 317, 2010 ABCA 97 (Alta. C.A.) (detailed listing of relevant factors).
9 R. v. Gingras, [2012] B.C.J. No. 2409, 2012 BCCA 467 (B.C.C.A.); R. v. Rahman, [2013] N.S.J. No. 435, 2013
NSCA 100 (N.S.C.A.); R. v. Will, [2013] S.J. No. 10, 2013 SKCA 4 (Sask. C.A.); R. v. Hogg, [2013] P.E.I.J. No. 4,
2013 PECA 4 (P.E.I.C.A.); R. v. Siggelkow, [2014] A.J. No. 1441, 2014 ABCA 450 (Alta. C.A.); R. v. Grandine, [2015]
O.J. No. 4302, 2015 ONCA 574, (Ont. C.A.); R. v. Baltovich, [2000] O.J. No. 987 at paras. 23-25, 144 C.C.C. (3d)
233 (Ont. C.A. (In Chambers)); R. v. Mapara, [2001] B.C.J. No. 1774 at para. 33, 2001 BCCA 508 (B.C.C.A.); contra:
R. v. Allen, [2001] N.J. No. 243 at para. 51, 2001 NFCA 44 (Nfld. C.A. (In Chambers)) (except where a ground is so
patent “as to make the case for … acquittal or new trial virtually unavoidable”).
10 R. v. S. (J.T.), [1996] A.J. No. 1051, 112 C.C.C. (3d) 184 (Alta. C.A.); R. v. Sidhu, [2015] A.J. No. 1050, 2015 ABCA
308 (Alta. C.A.) (release granted on review where bail refused because chambers judge erred in imposing an excessive
threshold regarding the merits of the applicant's appeal by requiring greater than 50% probability of success, and in
relying on the prospects of success as the sole basis for refusing release).
11 R. v. Farinacci, [1993] O.J. No. 2627, 86 C.C.C. (3d) 32 (Ont. C.A.). See also R. v. Baltovich, [1992] O.J. No. 2118,
10 O.R. (3d) 737 (Ont. C.A.); R. v. Pabani, [1991] O.J. No. 3462, 10 C.R. (4th) 381 (Ont. C.A. (In Chambers)); R. v.
Branco, [1993] B.C.J. No. 2265, 87 C.C.C. (3d) 71 (B.C.C.A.), leave to appeal refused [1994] S.C.C.A. No. 134
(S.C.C.).
12 United States of America v. Turner, [2003] N.J. No. 11, 2003 NLCA 4 (N.L.C.A.).
13 Trinidad and Tobago (Republic) v. Raghoonanan, [2003] O.J. No. 391 at para. 37, 173 C.C.C. (3d) 294 (Ont. C.A. (In
Chambers)).
14 R. v. Vincent, [2008] O.J. No. 534, 2008 ONCA 76 (Ont. C.A. (In Chambers)); R. v. Barbeau, [1998] Q.J. No. 3766,
131 C.C.C. (3d) 350 (Que. C.A.); R. v. Tolentino, [2003] O.J. No. 3508 (Ont. S.C.J.); R. v. Ranger, [2003] O.J. No.
5126 (Ont. C.A.).
15 R. v. Geddes, [2012] M.J. No. 107, 2012 MBCA 31 (Man. C.A.).
16 R. v. F. (D.P.), [1999] N.J. No. 353, 141 C.C.C. (3d) 391 (Nfld. C.A.).
17 R. v. Sutherland, [1994] S.J. No. 242, 90 C.C.C. (3d) 376 (Sask. C.A.).
End of Document
HC2-609 Review by court of appeal.
HC2-609
> (b) Release from Custody Pending Appeal > (v) Review of Decisions
(v) Review of Decisions
HC2-609 Review by court of appeal. The following decisions may, on the direction of the chief justice or acting
chief justice of the court of appeal, be reviewed by that court:
• A decision by a judge under s. 522. That section provides for the interim release by a judge only where an
accused is charged with a s. 469 offence.
11. A decision by a judge under subs. 524(4) or (5). Those subsections provide for orders directing the
retention or the release of an accused who is arrested where it is believed that he has either committed an
indictable offence after his release, or has contravened, or is about to contravene, any summons,
appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or
entered into by him.
5• A decision by a judge of the court of appeal under s. 261. That section allows a judge to stay an order
prohibiting the operation of a motor vehicle, vessel or aircraft pending an appeal taken against a conviction
or discharge under certain offences.
• A decision by a judge of the court of appeal under s. 679. That section deals with the release of an
appellant pending the determination of an appeal to the court of appeal.
Where the court of appeal reviews a decision described above and does not confirm that decision, then it may
either vary the decision or substitute such other decision as, in its opinion, should have been made. 1 Such a
decision shall have effect and may be enforced in all respects as though it were the decision originally made. 2
Single judge acting. On consent of the parties, the powers of the court of appeal under the above may be
exercised by a single judge of that court.3
Scope of section. Before a review is directed under the above, an applicant must establish that the application
had “arguable merit”, or put alternatively, that the appeal court, properly applying the law, could possibly conclude
Page 50 of 170
HC2-609 Review by court of appeal.
that the application for release should have been allowed. 4 Decisions conflict as to the proper approach on a
review. On review of a decision of a single judge of appeal, the court of appeal must make its own determination of
the facts. The applicant need not establish that the decision of the single judge is unreasonable or reflects manifest
error.5 However, it has also been held that a review is akin to an appeal on a record, not a de novo hearing.6 The
reviewing court may exercise an independent discretion and substitute its own decision for that of the court of first
instance, but the review must be based on the original judge's evaluation of the evidence. A wide view of the review
exercise has been adopted by some courts.7
Bail refusal. Dismissal of an application for bail under s. 523(2)(c)(ii) of the Code is not reviewable by the Court of
Appeal. Section 680(1) provides for a review of a decision “made by a judge under section 522 or subsection 524(4)
or (5)” but does not include s. 523(2)(c)(ii). “The effect of the legislation is that one may apply under s. 680 for a
direction to review a first order denying bail, but that if one applies unsuccessfully in the trial court under s. 523 to
vacate that first order, the Court of Appeal may not review the dismissal of the application to vacate.” 8
Publication ban. The Code is silent regarding a ban on publication in connection with subs. 680(1) bail
proceedings, both in regard to the leave application and also the review hearing itself. This is an obvious legislative
oversight but it means that only a discretionary common law ban is available, which requires proof of necessity for
the ban, absent which the media can publish the proceedings in full. 9
Which court. Review of a decision regarding release pending new trial after the accused has appeared in the trial
court may be brought in the trial court under s. 520 or the court of appeal under s. 680, though the former seems
preferable.10
Footnote(s)
4 R. v. Massan, [2012] M.J. No. 96, 2012 MBCA 26 (Man. C.A.); R. v. Allen, [2001] N.J. No. 243, 158 C.C.C. (3d) 225
(Nfld. C.A.); R. v. Cooper, [1999] A.J. No. 942, 138 C.C.C. (3d) 292 (Alta. C.A.); R. v. White, [2005] A.J. No. 1637,
202 C.C.C. (3d) 295 (Alta. C.A.). There is no jurisdiction to hear a review pursuant to s. 680 of a decision refusing bail
in an extradition matter pending leave to appeal to the Supreme Court of Canada: Saxena v. Thailand, [2006] B.C.J.
No. 907, 208 C.C.C. (3d) 71 (B.C.C.A.).
5 R. c. Quinton, [1993] J.Q. no 1661, 24 C.R. (4th) 242 (Que. C.A.).
6 R. v. Mapara, [2001] B.C.J. No. 1774, 158 C.C.C. (3d) 312 (B.C.C.A.).
7 R. v. Massan, [2012] M.J. No. 96, 2012 MBCA 26 (Man. C.A.); R. v. Hardiman, [2003] N.S.J. No. 27, 172 C.C.C.
(3d) 211 (N.S.C.A.) and R. v. Benson, [1992] N.S.J. No. 226, 73 C.C.C. (3d) 303 (N.S.C.A.).
8 R. v. Purdy, [2005] B.C.J. No. 332, 2005 BCCA 99 (B.C.C.A.).
9 R. v. White, [2006] A.J. No. 179, 2006 ABCA 65 (Alta. C.A.).
10 R. v. F. (D.P.), [1999] N.J. No. 353, 141 C.C.C. (3d) 391 (Nfld. C.A.).
End of Document
HC2-610 Report by judge.
HC2-610
> (c) Request for Report
(c) Request for Report
HC2-610 Report by judge. Where an appeal is taken or an application for leave to appeal is made under Part
XXI, the court of appeal or a judge thereof may request that the judge or provincial court judge who presided at the
trial provide a report on the case or on any matter relating to the case that is specified in the request. Such a report
shall be provided by the judge in accordance with the rules of court. 1 Note, however, that such a report is an
historical anachronism and is to be rarely if ever utilized.2
Transcript of evidence. A copy or transcript of the following shall be furnished to the court of appeal, except in so
far as it is dispensed with by order of a judge of that court: 3
• the evidence taken at the trial

12. any charge to the jury and any objections that were made to a charge to the jury
6• the reasons for judgment, if any, and
• the addresses of the prosecutor and the accused, if a ground for the appeal is based on either of the
addresses
Copy to interested parties and Minister. Upon payment of any charges that are fixed by rules of court, a party to
an appeal is entitled to receive a report or transcript described above. 4 The Minister of Justice is also entitled to
such documents upon request.5
Transcripts. A new trial need not be ordered whenever there is a gap in the transcript. As a general rule there
must be a serious possibility that there was an error in the missing portion of the transcript, or that the omission
deprived the accused of a ground of appeal. In this case there was no serious possibility of error in the missing
portions of the charge to the jury. 6 However, some courts have acknowledged the mandatory nature of the
requirement and the prejudice to the accused from an incomplete transcript. 7 A conviction was reversed where the
addresses of counsel were not recorded and Crown counsel's address was a ground of appeal. 8 Also where the
evidence of a principal witness went missing.9
Page 52 of 170
HC2-610 Report by judge.
Footnote(s)
2 R. v. E. (A.W.), [1993] S.C.J. No. 90, 83 C.C.C. (3d) 462 (S.C.C.).
6 R. v. Hayes, [1989] S.C.J. No. 1, 48 C.C.C. (3d) 161 (S.C.C.). See also R. v. Paul, [1987] N.S.J. No. 187, 79 N.S.R.
(2d) 36 (N.S.C.A.).
7 R. v. Trotchie, [1982] S.J. No. 326, 66 C.C.C. (2d) 396 (Sask. C.A.).
8 R. v. Robillard, [1969] 4 C.C.C. 120 (Que. C.A.).
9 R. v. Herman, [1984] S.J. No. 676, [1986] 1 W.W.R. 725 (Sask. C.A.).
End of Document
HC2-611 Right of appellant to attend.
HC2-611
> (d) Presence of Appellant
(d) Presence of Appellant
HC2-611 Right of appellant to attend. Subject to the following paragraph, an appellant who is in custody is
entitled, if he or she desires, to be present at the hearing of the appeal. 1
Appellant represented by counsel. Unless rules of court provide that he is entitled to be present or the court of
appeal or a judge thereof gives him leave to be present, an appellant who is in custody and who is represented by
counsel is not entitled to be present at the following: 2
• the hearing of the appeal, where the appeal is on a ground involving a question of law alone
13. an application for leave to appeal, or
7• any proceedings that are preliminary or incidental to an appeal
Manner of appearance. In the case of an appellant who is in custody and who is entitled to be present at any
proceedings on an appeal, the court may order that, instead of the appellant personally appearing at an application
for leave to appeal or at any proceedings that are preliminary or incidental to an appeal, the appellant appear by
means of any suitable telecommunication device, including telephone, that is satisfactory to the court. In the case of
the hearing of the appeal, the court may order that such an appellant, if he or she has access to legal advice,
appear by means of closed-circuit television or any other means that permits the court and all parties to engage in
simultaneous visual and oral communication.3
Argument may be oral or in writing. An appellant may present his case on appeal and his argument in writing
instead of orally, and the court of appeal shall consider any case of argument so presented. 4
Sentence in absence of appellant. A court of appeal may exercise its power to impose sentence notwithstanding
that the appellant is not present.5
Presence of accused. Under the above provisions the appellant has a statutory right to be present. When he has
expressed his desire to be present and is not present through no fault of his own, the appeal court has no right to
enter upon the hearing and should adjourn the appeal to enable the appellant to be present. To proceed in his
Page 54 of 170
absence is error in law.6 An accused can apply for leave to be present on an application for judicial interim release
pending appeal, which is an “incidental proceeding” under subs. 688(2). Cause must be shown why such an order
should be made that there would be some prejudice to him if he were not present or that there were some other
compelling circumstances mandating his presence.7
Footnote(s)
6 Smith v. R., [1965] S.C.J. No. 38, [1966] 1 C.C.C. 162 (S.C.C.); R. v. Elworthy, [1983] B.C.J. No. 1638, 49 B.C.L.R.
188 (B.C.C.A.); R. v. Forsyth, [2003] B.C.J. No. 908, 174 C.C.C. (2d) 259 (B.C.C.A.).
7 R. v. Morin, [1993] O.J. No. 59, 78 C.C.C. (3d) 559 (Ont. C.A.).
End of Document
HC2-612 Powers of the court of appeal.
HC2-612
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (4) Procedural Powers of
the Court of Appeal > (a) General Powers
(4) Procedural Powers of the Court of Appeal
(a) General Powers
HC2-612 Powers of the court of appeal. For the purposes of an appeal under Part XXI, the court of appeal may,
where it considers it in the interests of justice, do any of the following: 1
• order the production of any writing, exhibit or other thing connected with the proceedings
14. order any witness who would have been a compellable witness at the trial, whether or not he was called at
the trial, to attend and be examined before the court of appeal
8• order any witness who would have been a compellable witness at the trial, whether or not he was called at
the trial, to be examined in the manner provided by rules of court before a judge of the court of appeal, or
before any officer of the court of appeal or justice of the peace or other person appointed by the court of
appeal for the purpose, and to admit as evidence any such examination
• receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not
compellable witness
5• order that any question arising on the appeal that involves prolonged examination of writings or accounts,
or scientific or local investigation, and cannot in the opinion of the court of appeal conveniently be inquired
into before the court of appeal, be referred for inquiry and report, in the manner provided by rules of court,
to a special commissioner appointed by the court of appeal
5• act on the report of a commissioner who is appointed under the above paragraph in so far as the court of
appeal thinks fit to do so
3• amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his
defence or appeal
Parties entitled to adduce evidence and be heard. In proceedings under this section, the parties or their counsel
are entitled to examine or cross-examine witnesses, and are entitled to be present during an inquiry by a special
commissioner appointed by the court of appeal pursuant to the preceding provision in order to adduce evidence and
be heard during such an inquiry.2
Page 56 of 170
HC2-612 Powers of the court of appeal.
The court of appeal may also order that the presence of a party may be by any technological means satisfactory to
the court that permits the court and the other party or parties to communicate simultaneously. 3
Footnote(s)
End of Document
HC2-613 Power to order suspension.
HC2-613
the Court of Appeal > (b) Additional Powers > (i) Power to Order Suspension
(b) Additional Powers
(i) Power to Order Suspension
Note 1
See R. v. Kaplan, [2018] B.C.J. No. 137, 2018 BCCA 31 (B.C.C.A.), which held that the court lacked jurisdiction to
stay a DNA sample order where the power to stay the DNA order was not specifically stated in the (CAN) Criminal
Code, R.S.C. 1985, c. C-46.
HC2-613 Power to order suspension. Where an appeal or an application for leave to appeal has been filed in
the court of appeal, that court or a judge of that court may, where it considers it to be in the interests of justice,
order that any of the following obligations, orders or conditions be suspended until the appeal has been
determined:1
• any obligation to pay a fine

15. any order of forfeiture or disposition of forfeited property
9• any order to make restitution under s. 738 or 739
• any obligation to pay a victim surcharge under s. 737
6• a probation order under s. 731, or
6• a conditional sentence order under s. 742.1
Page 58 of 170
HC2-613 Power to order suspension.
Before making an order of suspension with regard to the specified probation or conditional sentence orders, the
court may order the offender to enter into an undertaking or recognizance. 2 In determining whether to vary the
offender's sentence, the court of appeal must take take the conditions of the undertaking or recognizance and the
period during which it was imposed.3
Revocation of suspension order in the “interests of justice”. The court of appeal may revoke any such
suspension order where it considers the revocation to be in the interests of justice. 4
“Interests of justice” include more than the merits of the appeal but also the public interest. 5 Neither the Criminal
Code nor the DNA Identification Act expressly authorize the court of appeal to stay the execution of a DNA order,
nor does the court have any inherent jurisdiction to do so. 6 A single judge of the Court of Appeal has no authority to
stay a Sex Offender Information Registration Act (“SOIRA”) order; there is no jurisdiction to suspend a SOIRA order
found in the Criminal Code or SOIRA.7
A broader view of the appeal court's powers was taken where it was held that s. 683(5) of the Criminal Code is not
exhaustive of the situations in which a stay pending appeal can be ordered, and a stay pending appeal can be
ordered of a fishing licence suspension imposed on conviction pursuant to ss. 78(a) and 79.1 of the Fisheries Act.8
Similarly, even absent express provision, an order against the Crown to pay costs made by a summary conviction
appeal court judge, pending the Crown's application for leave to appeal to the court of appeal, was also held able to
be stayed.9 Notwithstanding the absence of an express provision, an appeal court has authority to stay a firearms
prohibition imposed upon an accused at sentencing pending appeal. 10
Footnote(s)
5 R. v. CHEK TV Ltd., [1986] B.C.J. No. 169, 27 C.C.C. (3d) 380 (B.C.C.A.).
6 R. v. Doiron, [2011] N.B.J. No. 472, 383 N.B.R. (2d) 25 (N.B.C.A.); R. v. Zurowski, [2003] A.J. No. 693, 175 C.C.C.
(3d) 494 (Alta. C.A.); (CAN) DNA Identification Act, S.C. 1998, c. 37.
7 R. v. Farler, [2013] N.S.J. No. 41, 326 N.S.R. (2d) 255 (N.S.C.A.); R. v. T. (C.F.), [2012] N.S.J. No. 370, 319 N.S.R.
(2d) 10 (N.S.C.A. (In Chambers)); Sex Offender Information Registration Act, S.C. 2004, c. 10.
8 (CAN) R.S.C. 1985, c. F-14. See R. v. Gallant, [2006] P.E.I.J. No. 23, 2006 PESCAD 9 (P.E.I.C.A.).
9 R. v. Taylor, [2006] B.C.J. No. 1343, 2006 BCCA 297 (B.C.C.A.).
10 R. v. Lupyrypa, [2010] A.J. No. 1030, 2010 ABCA 264 (Alta. C.A.). Contra R. v. Doiron, [2011] N.B.J. No. 472, 383
N.B.R. (2d) 25 (N.B.C.A.).
End of Document
HC2-614 Amending indictment: section 683(1)(g).
HC2-614
the Court of Appeal > (b) Additional Powers > (ii) Power to Amend Indictment
(ii) Power to Amend Indictment
HC2-614 Amending indictment: section 683(1)(g). The scope of the power to amend on appeal is no different
from the scope of the power to amend at trial. The power to amend on appeal, like the power given trial judges by s.
601 of the Criminal Code, reaches defects in substance or form, and variations between the evidence and the
charge.1 Prejudice to the accused remains the litmus test against which all proposed amendments are judged.
Cases where an amendment substituting a different offence for the offence charged at trial can be properly made
on appeal will be few and far between. 2 The risk of prejudice is especially great where the proposed amendment
would materially amend the charge on appeal, and affirm the conviction on the basis of the amendment. 3 The
factors relevant to amendment on appeal are as follows: a court of appeal should consider the original indictment;
the evidence at trial; the positions of the parties at trial; the instructions of the trial judge; the verdict of the jury; and
the issues raised on appeal.4 An amendment may be granted to add an included offence and convict thereof. 5
Footnote(s)
1 R. v. Pelletier, [2012] O.J. No. 4061, 291 C.C.C. (3d) 279 (Ont. C.A.) ; R. v. Irwin, [1998] O.J. No. 627, 123 C.C.C.
(3d) 316 (Ont. C.A.).
2 R. v. Irwin, [1998] O.J. No. 627, 123 C.C.C. (3d) 316 (Ont. C.A.).
3 R. v. Tremblay, [1993] S.C.J. No. 85, [1993] 2 S.C.R. 932 (S.C.C.); R. v. B. (A.L.), [1998] B.C.J. No. 1840, 128
C.C.C. (3d) 87 (B.C.C.A.); R. v. S. (A.), [1998] O.J. No. 4070, 130 C.C.C. (3d) 320 (Ont. C.A.).
4 R. v. St. Clair, [1994] O.J. No. 101, 88 C.C.C. (3d) 402 (Ont. C.A.).
5 R. v. Symes, [1989] O.J. No. 528, 49 C.C.C. (3d) 81 (Ont. C.A.).
End of Document
HC2-615 Ancillary powers.
HC2-615
the Court of Appeal > (b) Additional Powers > (iii) Other Powers
(iii) Other Powers
HC2-615 Ancillary powers. A court of appeal may exercise, in relation to proceedings in the court, any powers
not mentioned in the list above that may be exercised by the court on appeals in civil matters. The court of appeal
may also issue any process that is necessary to enforce the orders or sentences of the court, but no costs shall be
allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedings
preliminary or incidental thereto.1
A further order for the disposition of the documents in issue under search warrants quashed by the court of appeal
has been made under this section. 2 An interim impoundment order preventing access to seized documents pending
determination of the validity of the relevant law can be made if justified. 3 Application by deceased's mother to be
intervene in sentencing appeal regarding accused who had been charged with second degree murder of her son
but who, following a plea bargain, pleaded guilty to manslaughter was dismissed. 4
Footnote(s)
2 Dobney Foundry v. R. (No. 3), [1986] B.C.J. No. 333, 29 C.C.C. (3d) 285 (B.C.C.A.).
3 143471 Canada Inc. v. Quebec (Attorney General), [1994] S.C.J. No. 45, [1994] 2 S.C.R. 339 (S.C.C.).
4 R. v. Geddes, [2005] M.J. No. 358, 2005 MBCA 121 (Man. C.A.).
End of Document
HC2-616 General principles.
HC2-616
the Court of Appeal > (c) Fresh Evidence on Appeal > (i) General
(c) Fresh Evidence on Appeal
(i) General
HC2-616 General principles. The overriding consideration must be “the interests of justice”. 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. 1 The evidence must be relevant in the sense that it
bears upon a decisive or potentially decisive issue in the trial. The evidence must be credible in the sense that it is
reasonably capable of belief, and 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. The last three criteria are conditions precedent to
the admission of evidence on appeal. Indeed, the second and third form part of the broader qualitative analysis
required by the fourth consideration. The first criterion, due diligence, is not a condition precedent to the
admissibility of “fresh” evidence in criminal appeals, but is a factor to be considered in deciding whether the
interests of justice warrant the admission of the evidence. 2 The admissibility of fresh evidence on appeal is the
same for sentence appeals as for conviction appeals.
Due diligence. Due diligence is not a condition precedent to the admissibility of “fresh” evidence in criminal
appeals, but is a factor to be considered in deciding whether the interests of justice warrant the admission of the
evidence.3 In criminal cases, the due diligence criterion must yield if its application would result in a miscarriage of
justice.4 In cases where the fresh evidence was not in existence until after the trial, obviously the due diligence
criterion will have been met. The criterion will also have been met in cases where the evidence, although in
existence at the time of trial, could not have been discovered by the exercise of due diligence. In all other cases, the
applicant, in order to meet the due diligence criterion, must explain why the evidence, although available, was not
called at trial. The explanation may, in some cases, give rise to an allegation of ineffective assistance of counsel.
The applicant may allege that the evidence was not discovered because of the lack of due diligence of counsel, or,
although discovered, it was not called because counsel, with or without the acquiescence of his client, decided
against calling it. In either situation, the competency of counsel may be put in issue by the appellant. 5
Admissibility rules. Proposed fresh evidence must be admissible. 6 Where proposed fresh evidence consists of
private records governed by ss. 278.1 to 278.91, an applicant must satisfy the statutory requirements before the
evidence may be received. A proper application must be made to this court, albeit under s. 683(1), but in conformity
Page 62 of 170
HC2-616 General principles.
with the requirements of ss. 278.1 to 278.91. These provisions cannot be circumvented by compelling the
attendance of the holder of the records. 7 Paragraph 683(1)(a) does not authorize either an order for production of a
physician's file or discussions between the physician and counsel for a party to a criminal appeal. What it does
authorize in appropriate cases is the production of documentary material connected with the proceeding or the
examination of a witness before the court or before a person appointed for the purpose of the examination. 8
Reply evidence. Where the accused introduces fresh evidence on appeal, the Crown can apply to adduce proper
admissible reply evidence. The general principles of compellability apply to applications to introduce fresh evidence
on appeal, including the rule that a witness may invoke an exception if called by the prosecutor for the predominant
purpose of incriminating the witness.9
Footnote(s)
1 R. v. A. (J.A.), [2011] S.C.J. No. 17, 2011 SCC 17 (S.C.C.); R. v. McMartin, [1964] S.C.J. No. 28, [1964] S.C.R. 484
(S.C.C.).
2 R. v. M. (P.S.), [1992] O.J. No. 2410, 77 C.C.C. (3d) 402 (Ont. C.A.).
3 Palmer v. R., [1979] S.C.J. No. 126, 50 C.C.C. (2d) 194 (S.C.C.); Stolar v. R., [1988] S.C.J. No. 20, 40 C.C.C. (3d) 1
(S.C.C.).
4 R. v. Levesque, [2000] S.C.J. No. 47, [2000] 2 S.C.R. 487 (S.C.C.).
5 R. v. B. (G.D.), [2000] S.C.J. No. 22, [2000] 1 S.C.R. 520 (S.C.C.); R. v. Warsing, [1998] S.C.J. No. 91, [1998] 3
S.C.R. 579 (S.C.C.); R. v. Smith, [2001] O.J. No. 4981, 161 C.C.C. (3d) 1 (Ont. C.A.); R. v. Appleton, [2001] O.J. No.
3338, 156 C.C.C. (3d) 321 (Ont. C.A.). The requirement is applied more strictly against the Crown. Due diligence was
held to bar the Crown from adducing fresh evidence on appeal regarding the accused's sentence for theft that the
accused had been charged with two new counts of fraud, both of which were allegedly committed while he was waiting
to be sentenced: R. v. Angelillo, [2006] S.C.J. No. 55, [2006] 2 S.C.R. No. 728 (S.C.C.). See also R. v. Ruffolo,
[2012] B.C.J. No. 1572, 2012 BCCA 325 (B.C.C.A.).
6 R. v. O'Brien, [1977] S.C.J. No. 65, 35 C.C.C. (2d) 209 (S.C.C.). On a motion brought in the appellate context for
production of records subject to a third party privacy interest, the first issue for determination is whether the relevancy
threshold has been satisfied that the information may reasonably possibly assist the accused in the prosecution of their
appeal. It is only once it has been determined that this threshold has been satisfied that the question of whether a third
party privacy interest should trump an appellant's claim for disclosure should be considered: R. v. McNeil, [2006] O.J.
No. 4746, 215 C.C.C. (3d) 22 (Ont. C.A.).
7 R. v. Rodgers, [2000] O.J. No. 1065, 144 C.C.C. (3d) 568 (Ont. C.A.).
8 R. v. Nikerson, [1993] N.S.J. No. 188, 81 C.C.C. (3d) 398 (N.S.C.A.); R. v. R. (K.A.), [1993] N.S.J. No. 18, 18 C.R.
(4th) 122, 79 C.C.C. (3d) 253 (N.S.C.A.).
9 R. v. Rodgers, [2000] O.J. No. 1065, 144 C.C.C. (3d) 568 (Ont. C.A.).
End of Document
HC2-617 Admissibility.
HC2-617
the Court of Appeal > (c) Fresh Evidence on Appeal > (ii) Where Relevant to Trial Process
(ii) Where Relevant to Trial Process
HC2-617 Admissibility. Where the new evidence sought to be admitted is relevant to the validity of the trial
process itself, rather than directed at a finding made at the trial, it is admissible. The fresh evidence criteria above
do not apply. The interests of justice require that the court of appeal admit the evidence. 1 Such evidence must still
be admissible evidence.2
Juror misconduct. Where the Crown appeals the accused's acquittal on the ground of juror bias, evidence of the
juror's subsequent conviction after the acquittal for obstructing justice is admissible as fresh evidence on appeal.
This evidence relates to the issue of whether there was a reasonable apprehension of bias on the part of the juror. 3
A juror is a competent, though not compellable witness in the matter. 4 Evidence of statements made by a juror to a
third party is admissible and can be tendered on appeal as evidence of the juror's statement of mind. The
statements are overt acts displaying partiality and tend to show that the juror's state of mind was at odds with the
impartiality required of a juror. Evidence of the juror's interraction with the acquitted accused after the trial is
similarly admissible.5
Incompetent counsel. An accused who is represented by counsel at trial is entitled to receive the effective
assistance of counsel. Ineffective representation may result in a miscarriage of justice necessitating the quashing of
the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be received on
appeal pursuant to subs. 683(1) so that the appellate court may determine whether the representation was
ineffective and ultimately whether it resulted in a miscarriage of justice. 6 The proposed evidence must provide a
basis upon which the court could conclude that a miscarriage of justice has occurred. The opposing party must
have adequate notice of the material, an opportunity to challenge it by cross-examination and an opportunity to offer
additional material relevant to the issue.7 Trial counsel must also have an opportunity to deal with the allegations. 8
An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three
things:
• First, where the claim is based on contested facts, the appellant must establish the material facts on the
balance of probabilities.
Page 64 of 170
16. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence.
Incompetence is measured against a reasonableness standard. That assessment is made having regard to
the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role
in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions
made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The
reasonableness analysis must proceed upon a “strong presumption that counsel's conduct fell within the
wide range of reasonable professional assistance”.
10• Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of
justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective
representation undermined the appearance of the fairness of the trial or the reliability of the verdict. A
verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a
competent fashion, there is a reasonable possibility that the verdict could have been different.
The evidence with respect to competence of counsel must be credible or the motion will fail. 9
Failure to testify. Regarding a failure to testify, if an appellant accused can show that it was trial counsel and not
the appellant who decided that the appellant would not testify, and that the appellant would have testified had he
understood that it was his decision, it must be accepted that his testimony could have affected the result, thereby
establishing that a miscarriage of justice occurred. The appellant accused bears the onus of demonstrating that trial
counsel and not the appellant decided that the appellant would not testify. 10
Conflict of interest. Where a conflict of interest is alleged, material outlining the full history of the client-solicitor
relationships may be crucial in determining whether the conflict existed and whether it resulted in a miscarriage of
justice. This material may include discussions between counsel and the clients and other pertinent information not
found within the trial record. If the appellant is to have an adequate opportunity to advance a claim based on trial
counsel's conduct and if the Crown is to have an adequate opportunity to refute that claim, then an appellate court
must be able to receive material which permits a full and fair assessment of the conduct in question. Incompetence
of counsel succeeded on appeal where counsel failed to investigate and interview an available witness who could
assist in confirming evidence of the accused's wife which provided an alibi for the accused. 11
Footnote(s)
1 R. v. Sauve, [1997] B.C.J. No. 2840, 121 C.C.C. (3d) 225 (B.C.C.A.); R. v. Rajaeefard, [1996] O.J. No. 108, 104
C.C.C. (3d) 225 (Ont. C.A.); R. v. Barbeau, [1996] J.Q. no 1030, 110 C.C.C. (3d) 69 (Que. C.A.); R. v. Delisle, [1999]
J.Q. no 18, 133 C.C.C. (3d) 541 (Que. C.A.).
2 R. v. Gumbly, [1996] N.S.J. No. 454, 112 C.C.C. (3d) 61 (N.S.C.A.).
3 R. v. Budai, [2001] B.C.J. No. 1010, 154 C.C.C. (3d) 289 (B.C.C.A.).
6 R. v. Meer, [2015] A.J. No. 411, 323 C.C.C. (3d) 98 (Alta. C.A.), affd [2016] S.C.J. No. 5, 2016 SCC 5 (S.C.C.); R. v.
Davies, [2008] O.J. No. 1128, 2008 ONCA 209 (Ont. C.A.); R. v. Archer, [2005] O.J. No. 4348, 202 C.C.C. (3d) 60
(Ont. C.A.); R. v. W. (R.), [2006] O.J. No. 807, 207 C.C.C. (3d) 137 (Ont. C.A.), leave to appeal refused [2007]
S.C.C.A. No. 337 (S.C.C.).
7 R. v. W. (W.), [1995] O.J. No. 2383, 100 C.C.C. (3d) 225 (Ont. C.A.).
8 R. v. Delisle, [1999] J.Q. no 18, 133 C.C.C. (3d) 541 (Que. C.A.); R. v. Dunbar, [2003] B.C.J. No. 2767, 2003 BCCA
667 (B.C.C.A.); R. v. W. (R.), [2006] O.J. No. 807, 207 C.C.C. (3d) 137 (Ont. C.A.), leave to appeal refused [2007]
S.C.C.A. No. 337 (S.C.C.). And may be granted intervenor status: R. v. Fraser, [2010] N.S.J. No. 646, 296 N.S.R. (2d)
281 (N.S.C.A.).
Page 65 of 170
9 R. v. Hobbs, [2010] N.S.J. No. 335, 291 N.S.R. (2d) 340 (N.S.C.A.), leave to appeal refused [2010] S.C.C.A. No. 294
(S.C.C.).
10 R. v. Archer, [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (Ont. C.A.); R. v. W. (R.), [2006] O.J. No. 807, 207 C.C.C.
(3d) 137 (Ont. C.A.), leave to appeal refused [2007] S.C.C.A. No. 337 (S.C.C.).
11 R. v. Jim, [2003] B.C.J. No. 1663, 2003 BCCA 411 (B.C.C.A.).
End of Document
HC2-618 Two-step test.
HC2-618
the Court of Appeal > (c) Fresh Evidence on Appeal > (iii) Non-disclosure by Crown
(iii) Non-disclosure by Crown
HC2-618 Two-step test. An appeal court applies a two-step test in assessing the effect of demonstrated non-
disclosure by the Crown as a ground of appeal. With respect to fresh evidence not available to the defence at trial
due to the Crown's failure to disclose, a new trial is the appropriate remedy if the accused can show that his or her
right to make full answer and defence was thereby violated. In order to discharge this burden, the accused can
show either “that there is a reasonable possibility that the non-disclosure affected the outcome at trial” or that it
affected “the overall fairness of the trial process”.
First prong. With respect to the first prong of the test, “it is important to note that the issue here is not whether the
undisclosed evidence would have made a difference to the trial outcome, but rather whether it could have made a
difference. More precisely, the issue the appellate court must determine is whether there is a reasonable possibility
that the additional evidence could have created a reasonable doubt in the jury's mind.”
Second prong. With respect to the second prong of the test, “an appellant need only establish a reasonable
possibility that the overall fairness of the trial process was impaired. This burden can be discharged by showing, for
example, that the undisclosed evidence could have been used to impeach the credibility of a prosecution witness …
or could have assisted the defence in its pre-trial investigations and preparations, or in its tactical decisions at trial.” 1
Similarly, if the prosecution fails to disclose to the defence that there is a witness who could have led to the timely
discovery of other witnesses who were useful to the defence. 2 The diligence of defence counsel in pursuing
disclosure is a factor to be considered. Where a reasonable possibility is demonstrated that the undisclosed
information could have been used in meeting the prosecution's case, advancing a defence, or making a decision
which could have affected the conduct of the defence, then the Charter right to disclosure has been impaired. 3 A
new trial was ordered where the prosecution failed to disclose information which might have had a material bearing
on the credibility of the prosecution's principal witness. 4
Guilty plea. In the context of a guilty plea, the two separate steps are merged. The accused must demonstrate that
there is a reasonable possibility that the fresh evidence would have influenced the accused's decision to plead
guilty, “if it had been available before the guilty plea was entered. However, the test is still objective in nature. The
Page 67 of 170
question is not whether the accused would actually have declined to plead guilty, but rather whether a reasonable
and properly informed person, put in the same situation, would have run the risk of standing trial if he or she had
had timely knowledge of the undisclosed evidence, when it is assessed together with all of the evidence already
known. … If that analysis can lead to the conclusion that there was a realistic possibility that the accused would
have run the risk of a trial, if he or she had been in possession of that information or those new avenues of
investigation, leave must be given to withdraw the plea.” 5
Lost evidence. Where evidence is alleged to have been “lost” by the prosecution due to an investigator's failure to
make Notes or a record of all conversations with a prospective witness, there must be a substantial air of reality to
the claim that the “lost” evidence would have actually assisted the defence. 6
Footnote(s)
1 R. v. Illes, [2008] S.C.J. No. 59 at paras. 25 and 27, 236 C.C.C. (3d) 129 (S.C.C.).
2 R. v. Illes, [2008] S.C.J. No. 59, 236 C.C.C. (3d) 129 (S.C.C.); R. v. Dixon, [1998] S.C.J. No. 17, [1998] 1 S.C.R.
244 (S.C.C.); R. v. Nguyen, [2006] S.J. No. 436, 211 C.C.C. (3d) 337 (Sask. C.A.).
3 See also R. v. Babinski, [1999] O.J. No. 1407, 135 C.C.C. (3d) 1 (Ont. C.A.).
4 R. v. C. (M.H.), [1991] S.C.J. No. 27, 63 C.C.C. (3d) 385 (S.C.C.).
5 R. v. Taillefer, [2003] S.C.J. No. 75 at para. 90, 179 C.C.C. (3d) 353 (S.C.C.).
6 R. v. Wicksted, [1996] O.J. No. 1576, 106 C.C.C. (3d) 385 (Ont. C.A.), affd [1997] S.C.J. No. 17, [1997] 1 S.C.R.
307 (S.C.C.).
End of Document
HC2-619 General.
HC2-619
the Court of Appeal > (c) Fresh Evidence on Appeal > (iv) Recantation
(iv) Recantation
HC2- 619 General. Where a recantation, or even a recanted recantation is offered as fresh evidence on appeal
the following principles apply. The focus should not only be on the believability of the recantation, but also upon the
believability of the witness's original testimony, given the recantation. There will be cases when an appeal court can
comfortably reject the recantation and decline to order a new trial. There may, for example, be clear evidence that
the recantation is the product of intimidation or an improper inducement. However, the fact that the recantation is
found not credible should not, in every case, preclude the admission of the fresh evidence. A recantation which has
been repudiated will often fall into the “not credible” category. In certain circumstances, however, the fact that there
has been a recantation, albeit later retracted, should be considered by the appeal court, in the context of what
impact that information might have on the trial court's assessment of the witness's credibility.
Credibility. The following factors have been identified as relevant to the credibility of the fresh evidence in
recantation cases:
• the witness's explanation as to why he or she testified as she did at trial

17. the explanation as to what has prompted the witness to change his or her evidence — whether it was in
response to duress, sympathy, inducements or a wish to tell the truth
11• other relevant circumstances surrounding the recantation
• whether the witness has put his or her oath to the recantation
7• the reputation of the witness for truthfulness
7• where there is a repudiation of the recantation, why the witness has again reverted to his or her trial
testimony
4• the circumstances surrounding the original disclosure of the trial evidence
1• facts, discovered subsequent to trial, which might have motivated the witness to fabricate evidence at trial
Page 69 of 170
HC2-619 General.
Factors. In assessing whether the fresh evidence (recantation) could reasonably be expected to have affected the
result, appeal courts have considered:
• how directly the evidence relates to the actus reus of the offence;
1• whether there is a compelling case against the appellant, apart from the evidence of the recanting witness
1• where it is argued that the fact of the recantation, even though not credible, should be put before the trier of
fact as relevant to the credibility of the witness, whether the alleged unreliability of the witness was already
before the trial court
Remedy. The appeal court does not have to believe the recantation is true or even credible. A new trial is required
where the evidence of recantation would have had such a devastating effect on the witness's evidence that, when
taken together with the evidence adduced at the trial, it can reasonably be expected to have affected the result. 1
Footnote(s)
1 R. v. Hache, [1999] N.S.J. No. 158, 136 C.C.C. (3d) 285 (N.S.C.A.); R. v. Babinski, [1999] O.J. No. 1407, 135
C.C.C. (3d) 1 (Ont. C.A.).
End of Document
HC2-620 Assignment of counsel.
HC2-620
the Court of Appeal > (d) Legal Assistance for Appellant
(d) Legal Assistance for Appellant
Note 1
See also R. v. Le, [2016] O.J. No. 5559, 2016 ONCA 798 (Ont. C.A.).
Note 9
See also R. v. Fiorilli, [2016] O.J. No. 5626, 2016 ONCA 814 (Ont. C.A.).
HC2-620 Assignment of counsel. Where a court of appeal or a judge of that court is of the opinion that it is
desirable in the interests of justice that an accused should have legal assistance and it appears that the accused
does not have sufficient means to obtain that assistance, the court or judge may assign counsel to that accused.
Such an assignment may be made at any time in respect of an accused who is party to an appeal or to proceedings
preliminary or incidental to an appeal.1
Counsel fees and disbursements. Where counsel is assigned pursuant to the above, and legal aid is not granted
to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by
the Attorney General who is the appellant or respondent, as the case may be, in the appeal. 2 If, in such a situation,
counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the
counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and
disbursements.3
Scope of section. The assignment of counsel, and consequential payment of fees and disbursements by the
Page 71 of 170
HC2-620 Assignment of counsel.
Attorney General in the event of refusal of legal aid, is discretionary. 4 Refusal of legal aid and demonstration that
the appeal is not frivolous as conditions of exercise of the judicial discretion conferred. 5 The merits inquiry should
not, however, go any further than a determination of whether the appeal is an arguable one. 6 Section 684 does not
contemplate a judge assigning counsel after legal aid has already been offered and apparently rejected. 7 The
section gives a judge of the court and the court concurrent jurisdiction to consider a request for the appointment of
counsel. Where deemed appropriate, the court may exercise its jurisdiction under the above provisions even though
a judge of the court has previously refused an application under the section. 8 Counsel must be appointed where an
accused cannot effectively present an appeal without the help of a lawyer. As well, counsel must be appointed
where the court cannot properly decide the appeal without the assistance of counsel. This inquiry looks to the
complexities of the arguments to be advanced and the appellant's ability to make an oral argument in support of the
grounds of appeal.9 The section applies in a habeas corpus application appeal.10
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 684(1). R. v. C. (P.), [2014] O.J. No. 3727, 2014 ONCA 577 (Ont.
C.A.), leave to appeal refused [2014] S.C.C.A. No. 463 (S.C.C.).
4 R. v. Smith, [2001] N.J. No. 220, 156 C.C.C. (3d) 461 (Nfld. C.A.); R. v. Donald, [2008] B.C.J. No. 1446, 2008 BCCA
316 (B.C.C.A.).
5 R. v. Smith, [2001] N.J. No. 220, 156 C.C.C. (3d) 461 (Nfld. C.A.); R. v. Donald, [2008] B.C.J. No. 1446, 2008 BCCA
316 (B.C.C.A.).
6 R. v. Bernardo, [1997] O.J. No. 5091, 121 C.C.C. (3d) 123 (Ont. C.A.) ; R. v. Donald, [2008] B.C.J. No. 1446, 2008
BCCA 316 (B.C.C.A.).
7 R. v. Johal, [1998] B.C.J. No. 1698, 127 C.C.C. (3d) 273 (B.C.C.A.).
8 R. v. Bernardo, [1997] O.J. No. 5091, 121 C.C.C. (3d) 123 (Ont. C.A.).
9 R. v. Bernardo, [1997] O.J. No. 5091, 121 C.C.C. (3d) 123 (Ont. C.A.).
10 Jolivet v. Mountain Institution, [2008] B.C.J. No. 839, 2008 BCCA 194 (B.C.C.A.).
End of Document
HC2-621 Summary determination of frivolous appeals.
HC2-621
the Court of Appeal > (e) Frivolous Appeals and Appeals Filed in Error
(e) Frivolous Appeals and Appeals Filed in Error
HC2-621 Summary determination of frivolous appeals. Where it appears to the registrar that a notice of
appeal, which purports to be on a ground of appeal that involves a question of law alone, does not show a
substantial ground of appeal, the registrar may refer the appeal to the court of appeal for summary determination.
Upon such a referral, the court of appeal may, if it considers that the appeal is frivolous or vexatious and can be
determined without being adjourned for a full hearing, dismiss the appeal summarily, without calling on any person
to attend the hearing or to appear for the respondent on the hearing. 1
Summary determination of appeals filed in error. If it appears to the registrar that a notice of appeal should
have been filed with another court, the registrar may refer the appeal to a judge of the court of appeal for summary
determination, and the judge may dismiss the appeal summarily without calling on any person to attend the hearing
or to appear for the respondent on the hearing.2
Footnote(s)
End of Document
HC2-622 When non-binding.
HC2-622
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (5) Adjudicatory Powers
of the Court of Appeal > (a) Powers on Appeal > (i) Stare Decisis
(5) Adjudicatory Powers of the Court of Appeal
(a) Powers on Appeal
(i) Stare Decisis
HC2-622 When non-binding. It has been said that obiter on a point of law expressed by the Supreme Court of
Canada is binding on lower courts, but in fact not everything said in a majority judgment of the Supreme Court of
Canada is binding.1 All obiter do not have, and are not intended to have, the same weight. The weight decreases as
one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance
and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that
are intended to be helpful and may be found to be persuasive, but are certainly not “binding”. The objective of the
exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a
judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent
with the basic fundamental principle that the common law develops by experience. A provincial appellate court is
not obliged, as a matter either of law or of practice, to follow a decision of the appellate court of another province
unless it is persuaded that it should do so on its merits or for other independent reasons. 2 An appeal court is not
bound by its earlier judgment where the liberty of the subject is in issue if convinced that that judgment is wrong. 3
Footnote(s)
1 R. v. Henry, [2005] S.C.J. No. 76, [2005] 3 S.C.R. No. 609, (S.C.C.), explaining Sellars v. R., [1980] S.C.J. No. 9, 52
C.C.C. (2d) 345 (S.C.C.).
2 Wolf v. R., [1974] S.C.J. No. 88, 17 C.C.C. (2d) 425 (S.C.C.).
3 R. v. Santeramo, [1976] O.J. No. 987, 32 C.C.C. (2d) 35 (Ont. C.A.).
End of Document
HC2-623 Powers on appeal.
HC2-623
of the Court of Appeal > (a) Powers on Appeal > (ii) Powers on Appeal
(ii) Powers on Appeal
HC2-623 Powers on appeal. 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 has
several options.
Allowing the appeal. The court may decide to allow the appeal where it is of the opinion that: 1
• the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the
evidence
18. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law,
or
12• on any ground there was a miscarriage of justice
Dismissing the appeal. The court of appeal may decide to dismiss the appeal where: 2
• the appeal is not decided in favour of the appellant on any ground mentioned in the preceding paragraph
8• notwithstanding that the court is of the opinion that on any ground mentioned in the preceding paragraph
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
8• it 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, or
5• 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
Page 75 of 170
Refusing to allow the appeal. The court of appeal 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. 3
Setting aside conviction. The court of appeal may also 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 s. 672.45 in any manner deemed appropriate to the court of appeal in the
circumstances.4
Order to be made where appeal allowed. Where a court of appeal allows an appeal on the ground that the
verdict is unreasonable or cannot be supported by the evidence, on the ground that the trial judgment was made on
a wrong decision on a question of law, or on the ground that there was a miscarriage of justice, it shall quash the
conviction and either direct a judgment or verdict of acquittal to be entered, or order a new trial. 5
Substituted verdicts. Where a court of appeal dismisses an appeal because it 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, it may substitute the verdict that in its opinion should have been found and either
affirm the sentence passed by the trial court, or 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. 6 When a court of appeal
dismisses the accused's appeal from the original conviction by substituting a verdict on another count or part of the
indictment, the court of appeal implicitly sets aside the conviction by the trial court and also implicitly affirms the new
conviction on the included offence. Thus, there are co-existing rights of appeal for both the accused, under s. 691,
and the Crown, under s. 693, from a court of appeal order for a substituted verdict. 7
Verdicts were substituted by the appellate court in the following circumstances:
2• A conviction for the included offence of causing bodily harm with intent to endanger life was substituted for
a conviction for attempted murder where the mens rea for the latter was not proved on the basis of a
changed rule of law.8
• Where the accused was found guilty of impaired driving and a breathalyzer offence but a conviction was
registered only for the breathalyzer offence because of the rule against multiple convictions, and the
accused then successfully appealed his breathalyzer conviction, this section gave the court of appeal
power to substitute a conviction for impaired driving. 9
2• Where the accused was convicted of gross indecency and indecent assault, but the conditional stay was
entered on the gross indecency count in accordance with the Kienapple principle, and on appeal the
indecent assault count was quashed and the conviction set aside, the appeal court set aside the gross
indecency stay and substituted a conviction for gross indecency. 10
2• Where on an appeal from a conviction for first degree murder, the court of appeal substitutes a conviction
for second degree murder, the court has jurisdiction to set the period of parole non-eligibility without the
benefit of a jury recommendation under s. 743.11
Appeal from acquittal. 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 either dismiss the
appeal or allow the appeal and set aside the verdict. If the appeal is allowed and the verdict set aside, the court of
appeal shall order a new trial or, 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. 12
Page 76 of 170
Where appeal allowed against a verdict of unfit to stand trial. Where a court of appeal allows an appeal
against a verdict that the accused is unfit to stand trial, it shall order a new trial. 13 However, where the verdict that
the accused is unfit to stand trial was returned after the close of the case for the prosecution, and the court of
appeal is of the opinion that the accused should have instead been acquitted at that stage of the proceedings, it
may set aside the verdict and direct a judgment or verdict of acquittal to be entered. 14
Imposition of sentence. Where the trial court's sentence is varied, the sentence runs from the original date of
sentencing.15 But where the Court of Appeal imposes a new sentence, for example on a substituted conviction, it
runs from that date and therefore the Court of Appeal in calculating the sentence to actually impose should deduct
the previous time in custody.16
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a).
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b).
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(c).
4 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(d); s. 672.45 provides that a court may hold a disposition
hearing and potentially make a disposition in respect of the accused under Part XX.I, or it may decide not to hold such
a hearing and forward all relevant information to the Review Board.
5 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(2); this provision applies in respect of an appeal allowed under s.
686(1)(a). If the court of appeal exercises any power conferred by this subsection, it may also make any additional
order that justice requires by way of subs. 686(8).
7 R. v. Biniaris, [2000] S.C.J. No. 16, [2000] 1 S.C.R. 381 (S.C.C.). See also R. v. G. (A.), [2000] S.C.J. No. 18, [2000]
1 S.C.R. 439 (S.C.C.) and R. v. Molodowic, [2000] S.C.J. No. 17, [2000] 1 S.C.R. 420 (S.C.C.).
8 Wigman v. R., [1987] S.C.J. No. 13, 33 C.C.C. (3d) 97 (S.C.C.).
9 R. v. Terlecki, [1983] A.J. No. 1019, 4 C.C.C. (3d) 522 (Alta. C.A.), affd [1985] S.C.J. No. 82, 22 C.C.C. (3d) 224
(S.C.C.).
10 R. v. Sharpe, [2007] B.C.J. No. 626, 219 C.C.C. (3d) 187 (B.C.C.A.); R. v. Kienapple, [1974] S.C.J. No. 76, [1975] 1
S.C.R. No. 729 (S.C.C.).
11 R. v. Kjeldsen, [1980] A.J. No. 850, 53 C.C.C. (2d) 55 (Alta. C.A.).
12 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(4); if the court of appeal exercises any power conferred by this
subsection, it may also make any additional order that justice requires by way of s. 686(8); R. v. Bellusci, [2012] S.C.J.
No. 44 at para. 34, 2012 SCC 44 (S.C.C.).
subsection, it may also make any additional order that justice requires by way of s. 686(8).
subsection, it may also make any additional order that justice requires by way of s. 686(8).
15 See (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 687(2).
16 R. v. Conway, [1997] O.J. No. 5224, 121 C.C.C. (3d) 397 (Ont. C.A.); R. v. Boyd, [1979] O.J. No. 499, 47 C.C.C.
(2d) 369 (Ont. C.A.); R. v. Crowe, [1986] S.J. No. 800, 55 Sask. R. 9 (Sask. C.A.).
End of Document
HC2-624 Powers of court on appeal against sentence.
HC2-624
of the Court of Appeal > (a) Powers on Appeal > (iii) Appeals Against Sentence
(iii) Appeals Against Sentence
Note 12
See also R. v. Kreko, [2016] O.J. No. 2552, 2016 ONCA 367 (Ont. C.A.), where the Court of Appeal held that the
sentencing judge erred by effectively requiring a causal link between the appellant’s Aboriginal heritage and the
offences. While he was adopted by non-Aboriginal parents and did not know that he was adopted until he was
between age 16 and 18, the appellant’s dislocation and loss of identity could be traced to systemic disadvantage
and impoverishment extending back to his great-grandparents, which was relevant to his moral blameworthiness for
the offences. See also R. v. Predham, [2016] A.J. No. 1227, 2016 ABCA 371 (Alta. C.A.); R. v. Wheatley, [2016]
B.C.J. No. 2075, 2016 BCCA 397 (B.C.C.A.); R. v. Legere, [2016] P.E.I.J. No. 21, 2016 PECA 7 (P.E.I.C.A.).
HC2-624 Powers of court on appeal against sentence. 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. Upon
receiving any evidence that it thinks fit to require or receive, if any, the court may either vary the sentence within the
limits prescribed by law for the offence of which the accused was convicted, or dismiss the appeal. 1
Effect of judgment. A judgment of a court of appeal that varies the sentence of an accused who was convicted
has the same force and effect as if it were a sentence passed by the trial court. 2
General principles. “[A]bsent an error in principle, failure to consider a relevant factor, or an overemphasis of the
appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is
Page 78 of 170
demonstrably unfit.”3 By virtue of the above, an appeal court's sentence varying that imposed at trial commences on
the date that the accused was sentenced by the trial court. 4 The rule on admissibility of fresh evidence on sentence
appeals is the same as on appeals from conviction.5
Powers. An appeal court does not have jurisdiction to return the matter to the trial court to impose a “proper'”
sentence. “The Appeal Court must either vary the sentence or dismiss the appeal. … Normally the analysis requires
consideration of the fitness of the sentence imposed. However, an illegal sentence imposed is an error in law that
requires the Appeal Court to impose a sentence without deference to the sentencing judge.” 6
Change in law. Where there has been an intervening change in the law between sentencing and appeal, it is as
though the sentencing judge has committed an error in principle, albeit for reasons beyond the judge's control,
because relevant principles have not been considered. The court of appeal need not, therefore, defer to all of the
trial judge's findings, and can proceed to re-sentence the accused in light of the new principles. 7
Effect of jury verdict. Where the factual implication of the jury's verdict is clear, the sentencing judge is bound to
accept it and a sentence which is excessive in the light of the facts implied in the verdict will be reduced. Where on
counts of dangerous driving causing death and bodily harm, a jury finds guilt of dangerous driving simpliciter, the
jury has negated the factor of causation. Therefore the consequence of death or bodily harm cannot be considered
in sentencing.8
Stay of new sentence. Where an intermittent sentence for sexual assault was set aside on Crown appeal as
wholly inadequate, and an appropriate sentence of two years less one day imprisonment substituted, but since
accused served the sentence imposed already, the substituted sentence was ordered stayed permanently. 9
Joint submissions. A sentencing judge cannot refuse to accept a joint submission unless there is good cause to
do so.10 Where the Crown attached as a condition of accepting a plea to a lesser offence the requirement of a joint
submission to a sentence in excess of the appropriate range, the Court of Appeal reduced the sentence on an
appeal by the accused notwithstanding the joint submission. 11
Aboriginal offenders. Where a sentencing judge does not properly take into account the circumstances of the
Aboriginal offender as required by s. 718.2(e) of the Criminal Code, and fails to properly and adequately conduct
the inquiry set out in Gladue, it amounts to an error justifying appellate intervention. 12
Footnote(s)
3 R. v. M. (L.), [2008] S.C.J. No. 31 at para. 14, 231 C.C.C. (3d) 310 (S.C.C.); R. v. W. (L.F.), [2000] S.C.J. No. 7,
[2000] 1 S.C.R. 132 (S.C.C.); R. v. Stone, [1999] S.C.J. No. 27, [1999] 2 S.C.R. 290 (S.C.C.); R. v. M. (C.A.), [1996]
S.C.J. No. 28, [1996] 1 S.C.R. 500 (S.C.C.); R. v. Shropshire, [1995] S.C.J. No. 52, 102 C.C.C. (3d) 193 (S.C.C.); R.
v. Johnson, [1996] B.C.J. No. 2508, 112 C.C.C. (3d) 225 (B.C.C.A.). However in R. v. M. (Q.A.) , [2005] B.C.J. No.
2700, 204 C.C.C. (3d) 114 (B.C.C.A.), two years' imprisonment was reduced on appeal to two years less one day
imprisonment simply because of the immigration implications for the accused of the extra day. The unavailability of an
appeal to the Immigration Appeal Division as a result of the difference of one day in the sentence was not brought to
the attention of the sentencing judge. The loss of that right of appeal was a serious unintended collateral consequence
of the sentence. A reduction of one day was inconsequential in terms of denunciation, retribution and deterrence.
Where a sentencing judge does not properly take into account the circumstances of the Aboriginal offender as required
by s. 718.2(e) of the Criminal Code, and fails to properly and adequately conduct the inquiry set out in Gladue, it
amounts to an error justifying appellate intervention: R. v. Kakekagamick, [2006] O.J. No. 3346, 211 C.C.C. (3d) 289
(Ont. C.A.).
Page 79 of 170
4 R. v. Kohl, [2009] O.J. No. 1150, 244 C.C.C. (3d) 124 (Ont. C.A.); R. v. Crowe, [1986] S.J. No. 800, 55 Sask. R. 9
(Sask. C.A.); R. v. Boyd, [1979] O.J. No. 499, 47 C.C.C. (2d) 369 (Ont. C.A.).
5 R. v. Levesque, [2000] S.C.J. No. 47, [2002] 2 S.C.R. 487 (S.C.C.); R. v. Shropshire, [1995] S.C.J. No. 52, 102
C.C.C. (3d) 193 (S.C.C.).
6 R. v. Chickness, [2011] N.S.J. No. 319 at para. 6, 2011 NSSC 225 (N.S.S.C.).
7 R. v. Bunn, [2000] S.C.J. No. 10, [2000] 1 S.C.R. 183 (S.C.C.).
8 R. v. Brown, [1991] S.C.J. No. 57, 66 C.C.C. (3d) 1 (S.C.C.).
9 R. v. Shalley, [2005] M.J. No. 466, 201 Man. R. (2d) 142 (Man. C.A.). The stay of the execution of a more severe
sentence imposed on appeal by the Crown where accused has served lesser sentence imposed at trial is usually
decided having regard to the following factors: (1) the seriousness of the offences for which the offender was convicted;
(2) the elapsed time since the offender gained his or her freedom and the date the appellate court hears and decides
the sentence appeal; (3) whether any delay is attributable to one of the parties; and (4) the impact of reincarceration on
the rehabilitation of the offender: R. v. Veysey, [2006] N.B.J. No. 365, 2006 NBCA 55 (N.B.C.A.).
10 R. v. B. (J.W.I.), [2003] M.J. No. 224, 176 C.C.C. (3d) 13 (Man. C.A.); R. v. Dubuc, [1998] J.Q. no 3202, 131 C.C.C.
(3d) 250 (Que. C.A.); R. v. H. (J.), [1998] J.Q. no 4311, 129 C.C.C. (3d) 219 (Que. C.A.); R. v. MacIvor, [2003] N.S.J.
No. 188, 176 C.C.C. (3d) 420 (N.S.C.A.); R. v. Hatt, [2002] P.E.I.J. No. 17, 163 C.C.C. (3d) 552 (P.E.I.S.C.A.); R. v.
McKay, [2004] M.J. No. 205, 22 C.R. (6th) 327 (Man. C.A.).
11 R. v. Wood, [1988] O.J. No. 1308, 433 C.C.C. (3d) 570 (Ont. C.A.).
12 R. v. Kakekagamick, [2006] O.J. No. 3346, 211 C.C.C. (3d) 289 (Ont. C.A.).
End of Document
HC2-625 Re-opening appeal.
HC2-625
of the Court of Appeal > (a) Powers on Appeal > (iv) Re-opening Appeals
(iv) Re-opening Appeals
HC2-625 Re-opening appeal. If the appeal has been heard on the merits and judgment has been entered, the
court of appeal has no power to reopen an appeal. 1 Before a formal judgment of the court has been entered, the
court has jurisdiction to consider an application to re-open an appeal. The decision to re-open should consider that
finality is a primary but not always determinative factor; the interests of justice consider both finality and the risk of a
miscarriage of justice. The applicant must make out a clear and compelling case to justify a re-opening. If the case
has been heard on the merits, the applicant must show that the court overlooked or misapprehended the evidence
or an argument. Further, the error must go to a significant aspect of the case. 2 A court also has jurisdiction to re-
open an appeal previously dismissed or dealt with otherwise than on the merits. 3 The court of appeal has
jurisdiction to rescind previous orders refusing extensions of time where the interests of justice so require, 4 as does
a single judge have jurisdiction to rescind his own order. 5 An appeal court has inherent jurisdiction to re-open and
set aside a judgment even on the merits that was obtained by fraud, except, semble, an appeal from criminal
conviction or acquittal.6 However, the proper method of impeaching a judgment of the High Court on the ground of
fraud or of seeking to set it aside on the ground of subsequently discovered evidence is by action, whether or not
the judgment which is attacked has been affirmed or otherwise dealt with by the court of appeal or other appellate
tribunal. This allocation of jurisdiction makes sense because its exercise will frequently entail fact finding. Only in
exceptional circumstances will the court set aside the dismissal of an appeal made because of the failure of the
accused to surrender into custody.7
Footnote(s)
1 R. v. Purdy, [2010] B.C.J. No. 1876, 261 C.C.C. (3d) 33 (B.C.C.A.); R. v. Hummel, [2003] Y.J. No. 36, 175 C.C.C.
(3d) 1 (Y.T.C.A.); R. v. Brown, [2007] S.J. No. 647, 2007 SKCA 148 (Sask. C.A.); R. v. Schwartz, [2009] B.C.J. No.
185, 2009 BCCA 44 (B.C.C.A.), leave to appeal refused [2009] S.C.C.A. No. 157 (S.C.C.); R. v. Washington, [2008]
B.C.J. No. 699 (B.C.C.A.), leave to appeal refused [2007] S.C.C.A. No. 570 (S.C.C.) (even where it turned out the
appeal was to the wrong appeal court).
Page 81 of 170
HC2-625 Re-opening appeal.
2 R. v. Hummel, [2003] Y.J. No. 36, 175 C.C.C. (3d) 1 (Y.T.C.A.).
3 R. v. Jacobs, [1970] S.C.J. No. 67, 2 C.C.C. (2d) 26 (S.C.C.); R. v. Baker, [1983] B.C.J. No. 2091, 6 C.C.C. (3d) 385
(B.C.C.A.); R. v. H. (E.F.), [1996] O.J. No. 553 (Ont. C.A.); R. v. Rhingo, [1997] O.J. No. 1110, 115 C.C.C. (3d) 89
(Ont. C.A.); R. v. Watson, [1975] O.J. No. 75, 23 C.C.C. (2d) 366 (Ont. C.A.).
4 R. v. Audy (No. 1), [1977] O.J. No. 368, 34 C.C.C. (2d) 228 (Ont. C.A.).
5 R. v. Dunbrook, [1978] O.J. No. 2127, 44 C.C.C. (2d) 264 (Ont. C.A.).
6 R. v. B. (G.), [2003] O.J. No. 460, 172 C.C.C. (3d) 340 (Ont. C.A.).
7 R. v. D. (J.F.), [1988] O.J. No. 100 (1988), 25 O.A.C. 78 (Ont. C.A.).
End of Document
HC2-626 Death of an appellant.
HC2-626
of the Court of Appeal > (a) Powers on Appeal > (v) Death of Appellant
(v) Death of Appellant
HC2-626 Death of an appellant. When an appellant dies, the appeal court retains jurisdiction to proceed “in the
interests of justice”, but that is a jurisdiction that should be sparingly exercised. First it is necessary to determine
whether the required tangible and concrete dispute has disappeared and the issues have become academic.
Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its
discretion to hear the case. The fundamental criterion is “the interests of justice”. This jurisdiction should be
exercised sparingly. The appeal should be reconstituted with a live appellant by an application by the interested
party who wishes to continue the appeal despite the death of the appellant (or the respondent on a Crown appeal),
by a motion for an order to substitute the personal representative or another interested party in place of the
deceased.
Relevant factors. The question may be approached by reference to the following non-exhaustive list of helpful
factors:
• whether the appeal will proceed in a proper adversarial context

19. the strength of the grounds of the appeal
13• whether there are special circumstances that transcend the death of the individual appellant/respondent,
including
• a legal issue of general public importance, particularly if it is otherwise evasive of appellate review
• a systemic issue related to the administration of justice
• collateral consequences to the family of the deceased or to other interested persons or to the public
9• whether the nature of the order which could be made by the appellate court justifies the expenditure of
limited judicial (or court) resources to resolve a moot appeal
Page 83 of 170
HC2-626 Death of an appellant.
9• whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and
involve the court in free-standing, legislative-type pronouncements more properly left to the legislature
itself1
Footnote(s)
1 R. v. Smith, [2004] S.C.J. No. 11, 181 C.C.C. (3d) 225 (S.C.C.). See also R. v. Jette, [1999] J.Q. no 4641, 141
C.C.C. (3d) 52 (Que. C.A.).
End of Document
HC2-627 Crown appeal from acquittal.
HC2-627
of the Court of Appeal > (a) Powers on Appeal > (vi) Crown Appeal From Acquittal
(vi) Crown Appeal From Acquittal
Note 1
See R. v. Magoon, [2017] S.C.J. No. 101, 2018 SCC 14 (S.C.C.), where the Court held that the Court of Appeal
had jurisdiction to hear the prosecution’s appeals from first degree murder acquittals, despite fact that Magoon and
Jordan were convicted of second degree murder at trial.
Note 6
See also R. v. Choli, [2016] S.J. No. 228, 2016 SKCA 64 (Sask. C.A.).
HC2-627 Crown appeal from acquittal. Where the accused was acquitted at trial, the court of appeal cannot
substitute a conviction on appeal by the Crown unless all the findings necessary to support a verdict of guilty must
have been made, either explicitly or implicitly, or not be in issue. 1 A court of appeal has the authority to enter a stay
of proceedings where a new trial would constitute an abuse of process. 2 The Court of Appeal can only order a new
trial and cannot substitute an NCR-MD verdict on a successful Crown appeal from an acquittal. 3 However, pursuant
to s. 686(8), which “creates a broad discretionary power to make a wide variety of orders ancillary to the primary
order made under the remedial provisions in s. 686”, the court of appeal can limit the new trial to the issue of the
nature of the accused's automatism.4
A Crown appeal cannot be the means whereby the Crown puts forward a different case than the one it chose to
Page 85 of 170
HC2-627 Crown appeal from acquittal.
advance at trial. It offends double jeopardy principles, even as modified by the Crown's right of appeal, to subject an
accused, who has been acquitted, to a second trial based on arguments raised by the Crown for the first time on
appeal.5 To succeed on an appeal based upon jury misdirection, the Crown has to satisfy the appeal court that the
verdict would not necessarily have been the same if the trial judge had properly directed the jury. 6 The intentional
decision by the Crown not to proceed with other evidence that might support a conviction in order to immediately be
able to appeal an adverse ruling upon the admissibility of other evidence will disallow the Crown from appealing the
resulting acquittal.7 This does not apply where proceeding with the trial would be fruitless in light of the ruling.
Charter of Rights. Subparagraph 686(4)(b)(ii) allowing the entry of a conviction in other than a jury case does not
violate s. 7 of the Charter.8
Footnote(s)
1 R. v. Cassidy, [1989] S.C.J. No. 87, 50 C.C.C. (3d) 193 (S.C.C.).
2 R. v. E. (L.), [1994] O.J. No. 2641, 94 C.C.C. (3d) 228 (Ont. C.A.).
3 R. v. Luedecke, [2008] O.J. No. 4049, 236 C.C.C. (3d) 317 (Ont. C.A.).
4 R. v. Luedecke, [2008] O.J. No. 4049 at para. 131, 236 C.C.C. (3d) 317 (Ont. C.A.).
5 Wexler v. R., [1939] S.C.J. No. 22, 72 C.C.C. 1 (S.C.C.); R. v. Varga, [1994] O.J. No. 1111, 90 C.C.C. (3d) 484 (Ont.
C.A.).
6 R. v. O'Kane, [2012] M.J. No. 307, 292 C.C.C. (3d) 222 (Man. C.A.); R. v. Mackenzie, [1993] S.C.J. No. 7, 78
C.C.C. (3d) 193 (S.C.C.); Vezeau v. R., [1976] S.C.J. No. 71, 28 C.C.C. (2d) 81 (S.C.C.); R. v. Morin, [1988] S.C.J.
No. 80, 44 C.C.C. (3d) 193 (S.C.C.).
7 R. v. Banas, [1982] O.J. No. 3203, 65 C.C.C. (2d) 224 (Ont. C.A.); R. v. Bailey, [1983] O.J. No. 14, 4 C.C.C. (3d) 21
(Ont. C.A.); R. v. Voykin, [1986] A.J. No. 513, 29 C.C.C. (3d) 280 (Alta. C.A.).
8 R. v. Skalbania, [1997] S.C.J. No. 97, 120 C.C.C. (3d) 217 (S.C.C.).
End of Document
HC2-628 Governing principles.
HC2-628
of the Court of Appeal > (b) Valid Grounds of Appeal > (i) Adequacy of Reasons
(b) Valid Grounds of Appeal
(i) Adequacy of Reasons
HC2-628 Governing principles. As a result of two major decisions by the Supreme Court of Canada, 1 the
adequacy of reasons in the trial forum has become a major ground of appeal. In those decisions the duty of a trial
judge to give reasons was considered,2 and while reasons were not held to absolutely be a mandatory requirement,
the adequacy of reasons was held subject to the following principles:
(1) The delivery of reasoned decisions is inherent in the judge's role. It is part of the judge's accountability for
the discharge of the responsibilities of the office. In its most general sense, the obligation to provide
reasons for a decision is owed to the public at large.
(2) An accused person should not be left in doubt about why a conviction has been entered. Reasons for
judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be
clear from the record. The question is whether, in all the circumstances, the functional need to know has
been met.
(3) The lawyers for the parties may require reasons to assist them in considering and advising with respect to
a potential appeal. On the other hand, they may know all that is required to be known for that purpose on
the basis of the rest of the record.
(4) The statutory right of appeal, being directed to a conviction (or, in the case of the Crown, to a judgment or
verdict of acquittal) rather than to the reasons for that result, not every failure or deficiency in the reasons
provides a ground of appeal.
(5) Reasons perform an important function in the appellate process. Where the functional needs are not
satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a
miscarriage of justice within the scope of s. 686(1)(a) of the Criminal Code, depending on the
circumstances of the case and the nature and importance of the trial decision being rendered.
Page 87 of 170
(6) Reasons acquire particular importance when a trial judge is called upon to address troublesome principles
of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the
trial judge's conclusion is apparent from the record, even without being articulated.
(7) Regard will be had to the time constraints and general press of business in the criminal courts. The trial
judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial
judge's reasons provide the equivalent of a jury instruction.
(8) The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is
imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably
intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the
trial judge's decision.
(9) While it is presumed that judges know the law with which they work day in and day out and deal
competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in
particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to
have reviewed by the appellate court.
20. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers
itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in such
a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso. 3
“Reasons rendered long after a verdict, particularly where it is apparent that they were crafted after the
announcement of the verdict, may cause a reasonable person to apprehend that the trial judge engaged in result-
driven reasoning.”4
“[I]t is inappropriate to modify, change or add to a transcript of oral reasons rendered in court. There may well be
circumstances, such as when the original transcription is no longer available, where the improper alteration of the
transcript would be sufficient to warrant ordering a new trial. That said, editing the transcript for readability and to
assist in catching errors by the transcriber — not the judge — is appropriate. This would normally be limited to
matters such as punctuation, grammatical errors and the like. It is not an opportunity to revise, correct or reconsider
the words actually spoken and no changes of substance are to be made. … If unforeseen circumstances arise such
that, after delivery of reasons that were meant to be final, a trial judge wishes to correct or supplement the reasons
that were already delivered, various options are available. These include the issuance of an addendum, providing
supplementary reasons or, when the original reasons were oral, subsequently issuing a set of amended reasons,
written or oral. Candour and transparency are however, essential. Where changes or additions are made to the
reasons, counsel as well as any reviewing court should have a clear record of what occurred and be in a position to
opine as to the legal effect, if any, of the changes or additions made by the judge.” 5
“ … The obligation to deliver adequate reasons rests on the trial judge and the trial judge alone. Neither the
defence nor the Crown — whether appellant or respondent — has any onus to request a trial judge to deliver better
reasons. … [T]rial judges are entitled in appropriate instances to deliver summary rulings with further reasons to
follow. … However, if a trial judge does not later deliver 'full reasons' for a ruling and the ruling is appealed, then an
appellate court must assess whatever reasons have been delivered. A party is not foreclosed from challenging the
adequacy of reasons because that party failed to ask the trial judge to deliver further reasons.” 6
A conviction by judge alone will be set aside on appeal for inadequate reasons concerning weaknesses in the
Crown's case,7 how the accused's guilt was arrived at 8 or the accused's credibility when the verdict turns on the
credibility of the accused but the reasons fail to address the issue. 9 Similarly, conclusory reasons regarding the
complainant's credibility were held inadequate.10
Similarly, where the trial judge's reasons failed to show explanation for analysis or consideration of whether the
accused's evidence might reasonably be true even though the trial judge did not find him credible. 11 The principle
also applies on Crown appeals from acquittals.12
Page 88 of 170
Footnote(s)
1 R. v. Sheppard, [2002] S.C.J. No. 30, [2002] 1 S.C.R. 869 (S.C.C.); R. v. Braich, [2002] S.C.J. No. 29, [2002] 1
S.C.R. 903 (S.C.C.).
2 R. v. M. (R.E.), [2008] S.C.J. No. 52, 235 C.C.C. (3d) 290 (S.C.C.) (summarizes the general principles in detail); R. v.
B. (H.S.), [2008] S.C.J. No. 53, 235 C.C.C. (3d) 312 (S.C.C.).
3 R. v. Sheppard, [2002] S.C.J. No. 30 at para. 55, [2002] 1 S.C.R. 869 (S.C.C.).
4 R. v. Teskey, [2007] S.C.J. No. 25 at Court Summary, 220 C.C.C. (3d) 1 (S.C.C.).
5 R. v. Wang, [2010] O.J. No. 2490 at paras. 9 and 12, 256 C.C.C. (3d) 225 (Ont. C.A.).
6 R. v. Czibulka, [2011] O.J. No. 372 at paras. 38-40, 2011 ONCA 82 (Ont. C.A.).
7 R. v. Gabris, [2007] O.J. No. 2357, 2007 ONCA 437 (Ont. C.A.); R. v. W. (B.J.), [2008] A.J. No. 197, 2008 ABCA 75
(Alta. C.A.); R. v. Goran, [2008] O.J. No. 1069, 2008 ONCA 195 (Ont. C.A.) (trial judge's reasons failed to reflect
discussion and consideration of problems with identification witnesses); R. v. Strong, [2008] N.S.J. No. 211, 233
C.C.C. (3d) 154 (N.S.C.A.) (why exculpatory evidence of Crown witness did not raise reasonable doubt).
8 R. v. W. (B.J.), [2008] A.J. No. 197, 2008 ABCA 75 (Alta. C.A.); R. v. Sadler, [2008] B.C.J. No. 2306, 239 C.C.C.
(3d) 393 (B.C.C.A.) (reasons were silent on the issue of the mens rea of leaving scene of accident); R. v. Prokofiew,
[2008] O.J. No. 3151, 2008 ONCA 585 (Ont. C.A.) (fraud case); R. v. Stewart, [2008] A.J. No. 434, 2008 ABCA 150
(Alta. C.A.) (drug possession case).
9 R. v. Stamp, [2007] A.J. No. 442, 219 C.C.C. (3d) 471 (Alta. C.A.); R. v. N. (M.K.), [2007] B.C.J. No. 2075, 2007
BCCA 463 (B.C.C.A.); R. v. Gagnon, [2006] S.C.J. No. 17, [2006] 1 S.C.R. 621 (S.C.C.); R. v. D. (A.R.), [2005]
P.E.I.J. No. 36, 196 C.C.C. (3d) 273 (P.E.I.C.A.); R. v. Lake, [2005] N.S.J. No. 506, 203 C.C.C. (3d) 316 (N.S.C.A.);
R. v. C. (C.R.), [2009] S.J. No. 72, 242 C.C.C. (3d) 64 (Sask. C.A.).
10 R. v. Dinardo, [2008] S.C.J. No. 24, 231 C.C.C. (3d) 177 (S.C.C.); R. v. C. (C.R.), [2009] S.J. No. 72, 242 C.C.C.
(3d) 64 (Sask. C.A.).
11 R. v. Ellis, [2006] P.E.I.J. No. 60, 214 C.C.C. (3d) 49 (P.E.I.C.A.); R. v. Vuradin, [2013] S.C.J. No. 38 at paras. 11,
15, 2013 SCC 38 (S.C.C.).
12 R. v. Walker, [2008] S.C.J. No. 34, 231 C.C.C. (3d) 289 (S.C.C.) (“reasons not so inadequate that Crown's limited
right of appeal was impaired”) (at para. 27).
End of Document
HC2-629 Test under Code.
HC2-629
of the Court of Appeal > (b) Valid Grounds of Appeal > (ii) Unreasonable Verdict
(ii) Unreasonable Verdict
HC2-629 Test under Code. Whether a conviction was unreasonable within s. 686 is a question of law. Under s.
686(1)(a)(i), the test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably
have rendered”. The reviewing court must thoroughly re-examine the evidence and bring to bear the weight of its
judicial experience to decide whether, on all the evidence, the verdict was reasonable. 1 In a jury case it requires not
merely asking whether 12 properly instructed jurors, acting judicially, could reasonably have come to the same
result, but doing so through the lens of judicial experience which serves as an additional protection against an
unwarranted conviction.2 It is insufficient for the court of appeal to refer to a vague unease, or a lingering or lurking
doubt based on its own review of the evidence. This “lurking doubt” may be a powerful trigger for thorough appellate
scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis upon
which to interfere with the findings of a jury. If, after reviewing the evidence at the end of an error-free trial which led
to a conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in
itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeed reached in
a non-judicial manner. In that case, the court of appeal must proceed further with its analysis and consider the
totality of the evidence, and the peculiar factual circumstances of a given case will lead an experienced jurist to
conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it
produced.3 The test is equally applicable to the judgment of a judge sitting at trial without a jury. The review for
unreasonableness on appeal is different and easier when the judgment under attack is that of a single judge, at
least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court
may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the
unreasonable conclusion reached, and justify the reversal. 4 The same standard applies to setting aside a finding of
not guilty by reason of mental disorder. 5 The conviction can be set aside where the trial court's assessments of
credibility cannot be supported on any reasonable view of the evidence. 6
The situation was recently summarized as follows: “[T]he assessment of an 'unreasonable verdict' under s. 686(1)
(a)(i) of the Code has evolved to include three alternative strands. The first is whether the verdict overall is one that
a properly instructed jury acting judicially, could reasonably have rendered: R. v. Yebes, [1987] 2 S.C.R. 168 at
paras. 23 to 25; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36. That test is equally applicable to a
Page 90 of 170
jury trial or a trial before a judge without a jury: Biniaris at para. 37. Secondly, there is the test for material
misapprehension of the evidence as set out in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, although this test
has largely been associated with the miscarriage of justice subsection, namely s. 686(1)(a)(iii) of the Code. The
third strand which was more recently developed is that of demonstrable logical incompatibility first described in R. v.
Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, and affirmed in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3.
In effect, these strands consider whether (a) the evidence as a whole is such that a reasonable jury, properly
instructed and acting judicially, could have reached the verdict, or (b) fact findings on material matters of a decisive
character are clearly wrong, or (c) whether the reasoning process used by the judge to get from the evidence to the
verdict makes sense. Application of the latter two strands would generally lead to a new trial because their
applicability would arise only if the evidence as a whole supports the verdict within the meaning of the first. …” 7
Misapprehension of the evidence. On appeals from conviction where misapprehension of the evidence is
alleged, the appeal court should first consider the reasonableness of the verdict. If the appellant succeeds on this
ground an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the
misapprehension of evidence occasioned a miscarriage of justice (s. 686(1)(a)(iii)). If the appellant is able to show
that the error resulted in a miscarriage of justice, then the conviction must be quashed and, in most cases, a new
trial ordered. Finally, if the appellant cannot show that the verdict was unreasonable or that the error produced a
miscarriage of justice, the court must consider the vexing question of whether the misapprehension of evidence
amounted to an error in law (s. 686(1)(a)(ii)). If the error is one of law, the onus will shift to the Crown to
demonstrate that it did not result in a miscarriage of justice (s. 686(1)(b)(iii)). In considering the reasonableness of
the verdict pursuant to s. 686(1)(a)(i), this court must conduct its own, albeit limited, review of the evidence adduced
at trial. This court's authority to declare a conviction unreasonable or unsupported by the evidence does not depend
upon the demonstration of any errors in the proceedings below. The verdict is the error where s. 686(1)(a)(i) is
properly invoked. A misapprehension of the evidence does not render a verdict unreasonable. Nor is a finding that
the judge misapprehended the evidence a condition precedent to a finding that a verdict is unreasonable. In cases
tried without juries, a finding that the trial judge did misapprehend the evidence can, however, figure prominently in
an argument that the resulting verdict was unreasonable. An appellant will be in a much better position to
demonstrate the unreasonableness of a verdict if the appellant can demonstrate that the trial judge
misapprehended significant evidence. Any error, including one involving a misapprehension of the evidence by the
trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair,
then s. 686(1)(a)(iii) requires that the conviction be quashed. The nature and extent of the misapprehension and its
significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict
must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of
material parts of the evidence and those 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. If an
appellant can demonstrate that the conviction depends on a misapprehension of the evidence then it must follow
that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the
evidence, as actually adduced at trial, was capable of supporting a conviction. 8
Judge's report. A Crown application for a report to try to show the trial judge misspoke with regards to the
evidence and did not misapprehend evidence has been dismissed. 9
Footnote(s)
1 R. v. Biniaris, [2000] S.C.J. No. 16 at para. 36, [2000] 1 S.C.R. 381 (S.C.C.), reconsideration refused (October 12,
2000), Doc. 26570 (S.C.C.). See also R. v. G. (A.), [2000] S.C.J. No. 18, [2000] 1 S.C.R. 439 (S.C.C.); R. v.
Molodowic, [2000] S.C.J. No. 17, [2000] 1 S.C.R. 420 (S.C.C.); R. v. W. (R.), [1992] S.C.J. No. 56, 74 C.C.C. (3d)
134 (S.C.C.).
Page 91 of 170
2 R. v. Biniaris, [2000] S.C.J. No. 16, [2000] 1 S.C.R. 381 (S.C.C.), reconsideration refused (October 12, 2000), Doc.
26570 (S.C.C.). See also R. v. G. (A.), [2000] S.C.J. No. 18, [2000] 1 S.C.R. 439 (S.C.C.); R. v. Molodowic, [2000]
S.C.J. No. 17, [2000] 1 S.C.R. 420 (S.C.C.); R. v. W. (R.), [1992] S.C.J. No. 56, 74 C.C.C. (3d) 134 (S.C.C.).
S.C.J. No. 17, [2000] 1 S.C.R. 420 (S.C.C.); R. v. W. (R.), [1992] S.C.J. No. 56, 74 C.C.C. (3d) 134 (S.C.C.).
S.C.J. No. 17, [2000] 1 S.C.R. 420 (S.C.C.); R. v. W. (R.), [1992] S.C.J. No. 56, 74 C.C.C. (3d) 134 (S.C.C.). It has
been suggested that in a judge-alone trial the test for unreasonable verdict is no longer the test articulated in R. v.
Biniaris, but the focus is on the reasons as opposed to the verdict; it is the reasons that inform the reasonableness of
the verdict: R. v. Sinclair, [2009] M.J. No. 252, 2009 MBCA 71 (Man. C.A.), revd [2011] S.C.J. No. 40, [2011] 3
S.C.R. 3 (S.C.C.); R. v. Oddleifson, [2010] M.J. No. 170, 256 C.C.C. (3d) 317 (Man. C.A.), leave to appeal refused
[2010] S.C.C.A. No. 244 (S.C.C.), citing R. v. Beaudry, [2007] S.C.J. No. 5, [2007] 1 S.C.R. 190 (S.C.C.) and R. v.
Jackson, [2007] S.C.J. No. 52, [2007] 3 S.C.R. 514 (S.C.C.); R. v. Sinclair, [2011] S.C.J. No. 40, 270 C.C.C. (3d)
421 (S.C.C.) (detailed consideration of unreasonable verdict ground in context of judge alone trials).
5 R. v. Fraser, [1997] O.J. No. 1282, 6 C.R. (5th) 420 (Ont. C.A.).
6 R. v. H. (W.), [2013] S.C.J. No. 22, 2013 SCC 22 (S.C.C.); R. v. Burke, [1996] S.C.J. No. 27, [1996] 1 S.C.R. 474
(S.C.C.).
7 R. v. Blea, [2012] A.J. No. 106 at paras. 39-40, 2012 ABCA 41 (Alta. C.A.).
8 R. v. Lohrer, [2004] S.C.J. No. 76, [2004] 3 S.C.R. 732 (S.C.C.); R. v. McNeil, [2008] O.J. No. 3695, 2008 ONCA
647 (Ont. C.A.); R. v. Morrissey, [1995] O.J. No. 639, 97 C.C.C. (3d) 193 (Ont. C.A.).
9 R. v. Dhillon, [2014] B.C.J. No. 909, 2014 BCCA 182 (B.C.C.A.).
End of Document
HC2-630 Onus.
HC2-630
of the Court of Appeal > (b) Valid Grounds of Appeal > (iii) Inconsistent Verdicts
(iii) Inconsistent Verdicts
HC2-630 Onus. In cases of inconsistent verdicts, the onus is upon the appellant to satisfy the appeal court that
the two verdicts cannot stand together.1 Before an appellate court may interfere with a verdict on the ground that it
is inconsistent, the court must find that the verdict is unreasonable. The appellant bears the onus to show that no
reasonable jury whose members had applied their minds to the evidence could have arrived at that conclusion. The
onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one
to meet because the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence.
The jury is entitled to accept or reject some, all or none of any witness's testimony. Indeed, individual members of
the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous. Similarly, the jury
is not bound by the theories advanced by either the Crown or the defence. The question is whether the verdicts are
supportable on any theory of the evidence consistent with the legal instructions given by the trial judge. 2
Footnote(s)
1 R. v. McLaughlin, [1974] O.J. No. 1815, 15 C.C.C. (2d) 562 (Ont. C.A.).
2 R. v. Pittiman, [2006] S.C.J. No. 9 (S.C.C.), [2006] 1 S.C.R. 381 (S.C.C.).
End of Document
HC2-631 Error of law.
HC2-631
of the Court of Appeal > (b) Valid Grounds of Appeal > (iv) Error of Law
(iv) Error of Law
HC2-631 Error of law. An error of law under subpara. 686(1)(a)(ii) can be any decision of the trial court that was
an erroneous interpretation or application of the law. It need not be linked to the final verdict but can be any
decision, obviously having contributed to the ultimate verdict as they all do, that was an erroneous interpretation or
application of the law. The determination of whether the error of law was prejudicial to the accused, and if so to
what extent, is an analysis reserved to the remedial proviso in s. 686(1)(b)(iii), with the burden then appropriately
placed on the Crown to satisfy the reviewing court that despite the error no substantial wrong or miscarriage of
justice has occurred.1 The exclusion of evidence that is admissible and relevant is an error of law. 2 Whether
evidence is capable of being confirmatory is a question of law. 3
Footnote(s)
1 R. v. Khan, [2001] S.C.J. No. 83, [2001] 3 S.C.R. 823 (S.C.C.).
2 R. v. Arthur, [1981] B.C.J. No. 1196, 63 C.C.C. (2d) 117 (B.C.C.A.); R. v. Youvarajah, [2013] S.C.J. No. 41, 2013
SCC 41 (S.C.C.).
3 R. v. Smith, [2009] A.J. No. 1399, 460 A.R. 288 (Alta. C.A.).
End of Document
HC2-632 Jury instructions.
HC2-632
of the Court of Appeal > (b) Valid Grounds of Appeal > (v) Charge to the Jury
(v) Charge to the Jury
Note 3
See also R. v. Hope, [2016] O.J. No. 4295, 2016 ONCA 623 (Ont. C.A.); R. v. Mustard, [2016] M.J. No. 105,
2016 MBCA 40 (Man. C.A.), leave to appeal refused [2016] S.C.C.A. No. 267 (S.C.C.).
HC2-632 Jury instructions. The charge to the jury must ensure that the jury understands the factual issues which
had to be resolved; the law to be applied to those issues and the evidence; the positions of the parties; and the
evidence relevant to the positions taken by the parties on the various issues. The responsibility of the trial judge to
relate the evidence to the issues raised by the defence is well established. The presiding judge must, except in rare
cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory
of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied
to the facts as they find them. 1 As a general rule, it is not acceptable for a trial judge simply to summarize all the
evidence and the legal principles, then to expect the jury to piece together the theories for itself. Where the trial is
very short, the facts reasonably straightforward, and the final summations of the lawyers adequate, the trial judge
may be under less of a duty to set out in detail the defence theories for which there is foundation in the evidence
because in such a case it may be “needless to do so”. However, such a situation is very rare indeed. 2
“Air of reality” test. A defence must be left to a jury if there is an air of reality for it. 3 The correct approach to the
air of reality is whether there is evidence on the record upon which a properly instructed jury acting reasonably
could acquit. A trial judge must put to the jury all defences that arise on the facts, whether or not they have been
Page 95 of 170
HC2-632 Jury instructions.
specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury. The air of
reality test imposes an evidential burden on the accused. In applying the air of reality test, a trial judge considers
the totality of the evidence, and assumes the evidence relied upon by the accused to be true. The evidential
foundation can be indicated by evidence emanating from the examination-in-chief or cross-examination of the
accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case
or from any other evidential source on the record. There is no requirement that the evidence be adduced by the
accused. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make
findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the
defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial
judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should
ultimately decide the issue.
Written instructions and materials. Giving juries written extracts from evidence or from a judge's charge, or
memoranda of law or copies of a relevant statute was traditionally viewed as “a dangerous procedure to be adopted
only in very special circumstances and with great care”4, but the modern view is that written jury instructions are
unobjectionable if properly handled. 5 A trial judge may provide written materials to jurors, especially where the
instructions are lengthy and complex.6 The judge should advise counsel of the decision; permit counsel to make
submissions about the content of the material; tell the jury that they will get written material; and use easy to read
material that presents a balanced and accurate statement of the governing legal principles. Where the accused
have testified and their defence hinges on their evidence giving rise to a reasonable doubt, the D.W. instruction is a
crucial component of the reasonable doubt instruction. If a trial judge decides to provide the jury with written
material relating to the burden of proof, he or she should include the D.W. instruction in that material. 7
Footnote(s)
1 R. v. MacKinnon, [1999] O.J. No. 346, 132 C.C.C. (3d) 545 (Ont. C.A.).
2 R. v. D. (D.), [1998] M.J. No. 322, 126 C.C.C. (3d) 435 (Man. C.A.).
3 R. v. Cinous, [2002] S.C.J. No. 28, [2002] 2 S.C.R. 3 (S.C.C.); R. v. Gauthier, [2013] S.C.J. No. 32, 2013 SCC 32
(S.C.C.).
4 R. v. Wong, [1978] B.C.J. No. 1156, 41 C.C.C. (2d) 196 at p. 204 (B.C.C.A.).
5 R. v. Colas, [2001] O.J. No. 4486, 161 C.C.C. (3d) 335 (Ont. C.A.).
6 R. v. Poitras, [2002] O.J. No. 25, 1 C.R. (6th) 366 (Ont. C.A.).
7 R. v. Hardy, [2005] O.J. No. 5478 (Ont. C.A.), referring to R. v. D.W., [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397
(S.C.C.).
End of Document
HC2-633 Miscarriage of justice.
HC2-633
of the Court of Appeal > (b) Valid Grounds of Appeal > (vi) Miscarriage of Justice
(vi) Miscarriage of Justice
HC2-633 Miscarriage of justice. Subparagraph 686(1)(a)(iii) is concerned with the impact of an error on the trial
proceedings which results in an unfair trial. The focus is not the verdict itself, but the fairness of the process which
produced the verdict.1 The appearance of an unfair process constitutes a miscarriage of justice. 2
Cross-examination. An unfairly prejudicial cross-examination of an accused constituted a miscarriage of justice. 3

However, this requires a showing of prejudice, and not merely improper and irrelevant questioning. 4
Judicial bias. Impartiality is a state of mind in which the adjudicator is disinterested in the conclusion and is open
to persuasion by the evidence and submission. 5 Bias deNotes a state of mind that is in some way predisposed to a
particular result, or closed with regard to certain issues. The test to be applied when it is alleged that a decision-
maker is not impartial is whether the particular conduct gives rise to a reasonable apprehension of bias. Actual bias
need not be shown. The test contains two objective elements: the person considering the alleged bias must be
reasonable, and the apprehension of bias must also be reasonable in the circumstances of the case. The
reasonable person must be informed, with knowledge of all relevant circumstances, including the traditions of
integrity and impartiality that form part of the background, apprised of the fact that impartiality is one of the duties
judges swear to uphold, and aware of the social reality that forms the background to a particular case, including an
awareness and acknowledgment of the prevalence of racism or gender bias in a community. 6
Ineffective assistance of counsel. An accused who is represented by counsel at trial is entitled to receive the
effective assistance of counsel. Ineffective representation may result in a miscarriage of justice necessitating the
quashing of the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be
received on appeal pursuant to subs. 683(1) so that the appellate court may determine whether the representation
was ineffective and ultimately whether it resulted in a miscarriage of justice. 7 The proposed evidence must provide a
basis upon which the court could conclude that a miscarriage of justice has occurred. The opposing party must
have adequate notice of the material, an opportunity to challenge it by cross-examination and an opportunity to offer
additional material relevant to the issue.8 Trial counsel must also have an opportunity to deal with the allegations. 9
An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three
Page 97 of 170
things. First, where the claim is based on contested facts, the appellant must establish the material facts on the
balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to
incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having
regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role
in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by
counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis
must proceed upon a “strong presumption that counsel's conduct fell within the wide range of reasonable
professional assistance”. Third, the appellant must demonstrate that counsel's ineffective representation caused a
miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective
representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is
rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is
a reasonable possibility that the verdict could have been different. Regarding a failure to testify, if an appellant
accused can show that it was trial counsel and not the appellant who decided that the appellant would not testify,
and that the appellant would have testified had he understood that it was his decision, it must be accepted that his
testimony could have affected the result, thereby establishing that a miscarriage of justice occurred. The appellant
accused bears the onus of demonstrating that trial counsel and not the appellant decided that the appellant would
not testify.10
Conflict of interest. Where a conflict of interests is alleged, material outlining the full history of the client-solicitor
relationships may be crucial in determining whether the conflict existed and whether it resulted in a miscarriage of
justice. This material may include discussions between counsel and the clients and other pertinent information not
found within the trial record. If the appellant is to have an adequate opportunity to advance a claim based on trial
counsel's conduct and if the Crown is to have an adequate opportunity to refute that claim, then an appellate court
must be able to receive material which permits a full and fair assessment of the conduct in question. Incompetence
of counsel succeeded on appeal where counsel failed to investigate and interview an available witness who could
assist in confirming evidence of the accused's wife which provided an alibi for the accused. 11
Footnote(s)
1 R. v. Guyatt, [1997] B.C.J. No. 2185, 119 C.C.C. (3d) 304 (B.C.C.A.).
2 R. v. Duke, [1985] A.J. No. 1057, 22 C.C.C. (3d) 217 (Alta. C.A.); R. v. Hertrich, [1982] O.J. No. 496, 67 C.C.C. (2d)
510 (Ont. C.A.); R. v. Masuda, [1953] B.C.J. No. 102, 106 C.C.C. 122 (B.C.C.A.); R. v. Cameron, [1991] O.J. No.
415, 2 O.R. (3d) 633 (Ont. C.A.).
3 Fanjoy v. R., [1985] S.C.J. No. 55, 21 C.C.C. (3d) 312 (S.C.C.).
4 R. v. Brown, [1982] A.J. No. 1038, 1 C.C.C. (3d) 107 (Alta. C.A.).
5 R. v. S. (R.D.), [1997] S.C.J. No. 84, 118 C.C.C. (3d) 353 (S.C.C.); R. v. Brown, [2003] O.J. No. 1251, 173 C.C.C.
(3d) 23 (Ont. C.A.).
6 Discussions between a coordinating judge and the trial judge, instigated by Crown counsel, and without the knowledge
of the defence, created the appearance of an interference with the judicial independence of the trial judge: R. v. Peters,
[1999] J.Q. no 4143, 140 C.C.C. (3d) 52 (Que. C.A.), affd [2001] S.C.J. No. 35, [2001] 1 S.C.R. 997 (S.C.C.).
7 R. v. Archer, [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (Ont. C.A.).
8 R. v. S. (R.D.), [1997] S.C.J. No. 84, 118 C.C.C. (3d) 353 (S.C.C.); R. v. Brown, [2003] O.J. No. 1251, 173 C.C.C.
(3d) 23 (Ont. C.A.).
9 R. v. Peters, [1999] J.Q. no 4143, 140 C.C.C. (3d) 52 (Que. C.A.), affd [2001] S.C.J. No. 35, [2001] 1 S.C.R. 997
(S.C.C.).
10 R. v. Archer, [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (Ont. C.A.).
11 R. v. Jim, [2003] B.C.J. No. 1663, 2003 BCCA 411 (B.C.C.A.).

Page 98 of 170
End of Document
HC2-634
of the Court of Appeal > (b) Valid Grounds of Appeal > (vii) Non-disclosure by Crown
(vii) Non-disclosure by Crown
HC2-634 Two-step test. An appeal court applies a two-step test in assessing the effect of demonstrated non-
disclosure by the Crown as a ground of appeal. To assess the reliability of the result of the trial, the undisclosed
information must be examined to determine the impact it might have had on the decision to convict. The onus is on
the accused to demonstrate that there is a reasonable possibility that the verdict might have been different but for
the Crown's failure to disclose all of the relevant evidence. Second, applying this test requires that the appellate
court determine that there was a reasonable possibility that the jury, with the benefit of all of the relevant evidence,
might have had a reasonable doubt as to the accused's guilt. An effort must be made to reconstruct the overall
picture of the evidence that would have been presented to the jury had it not been for the Crown's failure to disclose
the relevant evidence. Whether there is a reasonable possibility that the verdict might have been different must be
determined having regard to the evidence in its entirety. A negative answer at the first stage does not bring the
analysis to a close. The appellate court must then inquire as to whether there is a reasonable possibility that the
failure to disclose affected the overall fairness of the trial process. It will not be enough to determine whether the
right to make full answer and defence has been infringed having regard solely to the nature of the fresh evidence.
The potential usefulness of that evidence to the defence will also have to be considered. The reasonable possibility
of affecting the overall fairness of the trial “must be based on reasonably possible uses of the non-disclosed
evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-
disclosure”. The appeal court must ascertain whether the failure to disclose deprived the accused of certain
evidential or investigative resources. That would be the case, for example, if the undisclosed statement of a witness
could reasonably have been used to impeach the credibility of a prosecution witness. The conclusion would
necessarily be the same if the prosecution fails to disclose to the defence that there is a witness who could have led
to the timely discovery of other witnesses who were useful to the defence.
Guilty plea. In the context of a guilty plea, the two separate steps are merged. The accused must demonstrate that
there is a reasonable possibility that the fresh evidence would have influenced the accused's decision to plead
guilty, if it had been available before the guilty plea was entered. However, the test is still objective in nature. The
question is not whether the accused would actually have declined to plead guilty, but rather whether a reasonable
and properly informed person, put in the same situation, would have run the risk of standing trial if they had had
Page 100 of 170
timely knowledge of the undisclosed evidence, when it is assessed together with all of the evidence already known.
If that analysis can lead to the conclusion that there was a realistic possibility that the accused would have run the
risk of a trial, if the accused had been in possession of that information or those new avenues of investigation, leave
must be given to withdraw the plea.1
Lost evidence. Where evidence is alleged to have been “lost” by the prosecution due to an investigator's failure to
make notes or a record of all conversations with a prospective witness, there must be a substantial air of reality to
the claim that the “lost” evidence would have actually assisted the defence. 2
Footnote(s)
1 R. v. W. (W.), [1995] O.J. No. 2383, 100 C.C.C. (3d) 225 (Ont. C.A.).
2 R. v. Wicksted, [1996] O.J. No. 1576, 106 C.C.C. (3d) 385 (Ont. C.A.), affd [1997] S.C.J. No. 17, [1997] 1 S.C.R.
307 (S.C.C.).
End of Document
HC2-635 Mental disorder (insanity).
HC2-635
of the Court of Appeal > (b) Valid Grounds of Appeal > (viii) Mental Disorder
(viii) Mental Disorder
HC2-635 Mental disorder (insanity). There are circumstances in which it is appropriate to permit an accused to
raise a defence of NCROAMD (“not criminally responsible on account of mental disorder”) for the first time on
appeal.1 Where a defence of NCROAMD is raised for the first time on appeal, an appeal court may, if the fresh
evidence warrants it, invoke s. 686(1)(d) to set aside the conviction and find the accused NCROAMD. If the court of
appeal concludes that it cannot determine the NCROAMD issue, it must order a new trial under s. 686(1)(a)(iii) and
(2)(b). It cannot limit the new trial to a determination of the NCROAMD issue. 2 A limited trial which restricts the
accused's right to control his defence, offends a fundamental principle of justice and is an untenable result. The
accused must be able to put forward whatever defence he has. In the circumstances of this case the respondent
should be granted that opportunity. An accused is able to raise the defence of NCROAMD at any time during the
trial or wait to raise the defence once the trier of fact has made a determination of guilt. As well, evidence led with
respect to a mental disorder that was not sufficient to convince the trier of fact that the accused was NCROAMD
could be considered on the issue of whether the accused had the requisite mens rea. In this light, it is evident that
an accused's ability to make full answer and defence could be significantly prejudiced in his defence by restricting
his trial to the issue of NCROAMD.3
Unfit appellant. Although there is no express provision, an appellate court can deal with an unfit appellant,
provided there are sufficient procedural protections to ensure fairness. The court may substitute a special verdict of
NCROAMD where it has sufficient facts to make that determination. 4
Footnote(s)
1 R. v. Warsing, [1998] S.C.J. No. 91, 3 S.C.R. 579 (S.C.C.).
2 The same obtains where the Crown pursues a successful appeal because NCROAMD. New trial ordered must be
ordered and not simply retrial of insanity issue: R. v. Wells, [2004] A.J. No. 1496, 193 C.C.C. (3d) 43 (Alta. C.A.).
Page 102 of 170
HC2-635 Mental disorder (insanity).
3 R. v. Warsing, [1998] S.C.J. No. 91, [1998] 3 S.C.R. 579 (S.C.C.).
4 R. v. Ta, [2002] O.J. No. 1453, 164 C.C.C. (3d) 97 (Ont. C.A.).
End of Document
HC2-636 No substantial wrong: the “proviso” in section 686(1)(b)(iii).
HC2-636
of the Court of Appeal > (c) Grounds for Dismissing Appeal > (i) No Substantial Wrong
(c) Grounds for Dismissing Appeal
(i) No Substantial Wrong
Note 2
See also R. v. Clause, [2016] O.J. No. 5894, 2016 ONCA 859 (Ont. C.A.); R. v. Cromwell, [2016] N.S.J. No. 447,
2016 NSCA 84 (N.S.C.A.); R. v. Borden, [2017] N.S.J. No. 206, 2017 NSCA 45 (N.S.C.A.); R. v. Foerster, [2017]
B.C.J. No. 432, 2017 BCCA 105 (B.C.C.A.).
HC2-636 No substantial wrong: the “proviso” in section 686(1)(b)(iii). This proviso eliminates the need for a
new trial despite a legal error at the first trial where a new trial is not necessary to ensure the proper administration
of criminal justice. If the legal error casts no doubt on the reliability of the verdict, or the essential fairness of the
trial, justice is not served by a new trial. Where the essential fairness of the trial is not undermined by the legal
error, this provision can be applied to dismiss an appeal but only where the appellate court is satisfied, based on a
review of the entirety of the trial record, that there is no reasonable possibility that the verdict would have been
different had the legal error not been made.1
Errors. There are essentially two classes of errors which have been identified by reviewing courts and which have
led to a proper application of the proviso. The first category is that of so-called “harmless errors”, or errors of a
minor nature having no impact on the verdict. The second category encompasses serious errors which would justify
a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing court
concludes that there was no substantial wrong or miscarriage of justice. In every case, if the reviewing court
concludes that the error, whether procedural or substantive, led to a denial of a fair trial, the court may properly
Page 104 of 170
HC2-636 No substantial wrong: the “proviso” in section 686(1)(b)(iii).
characterize the matter as one where there was a miscarriage of justice. In that case, no remedial provision is
available and the appeal must be allowed.2
Onus. Once an error in law has been found to have occurred at trial, the onus is on the prosecution to satisfy the
court that the verdict would necessarily have been the same if such error had not occurred. 3 This is a condition
precedent to the application of s. 686(1)(b)(iii). Even if the onus is discharged, the court is not bound to apply the
section.4 A court should not apply the curative proviso on its own initiative. 5
Examples. The section was not applied where:
• There was a failure to leave an included offence. 6

21. A claim of deficient performance by defence counsel, if made out, vitiates a conviction. 7
14• The trial judge failed to adequately and succinctly explain the position of the defence to the jury. 8
• The trial judge failed to deal with a question submitted by the jury. 9
10• The trial judge failed to limit unfairly prejudicial cross-examination of the accused. This was not an error of
law alone but one involving both law and fact.10
10• The accused was denied the right to an interpreter under s. 14 of the Charter. 11
In general, a respondent in a criminal appeal may raise any argument that supports the order of the court below; 12
provided the requisite evidentiary basis exists on the record. 13
Footnote(s)
1 R. v. Klymchuk, [2005] O.J. No. 5094, 2003 C.C.C. (3d) 341 (Ont. C.A.), leave to appeal refused [2011] S.C.C.A. No.
332 (S.C.C.).
3 R. v. Haughton, [1994] S.C.J. No. 86, 93 C.C.C. (3d) 99 (S.C.C.); R. v. Charlebois, [2000] S.C.J. No. 55, [2000] 2
S.C.R. 674 (S.C.C.); R. v. Bevan, [1993] S.C.J. No. 69, 82 C.C.C. (3d) 310 (S.C.C.); R. v. Sarrazin, [2011] S.C.J. No.
54 at para. 28, [2011] 3 S.C.R. 505 (S.C.C.) (“the burden of the Crown to demonstrate an 'overwhelming' case or a
'harmless' error of law should not be relaxed”).
4 Colpitts v. R., [1965] S.C.J. No. 48, [1966] 1 C.C.C. 146 (S.C.C.).
5 R. v. Bisson, [2010] O.J. No. 3475, 258 C.C.C. (3d) 338 (Ont. C.A.), leave to appeal refused [2010] S.C.C.A. No. 400
(S.C.C.).
6 R. v. Sarrazin, [2011] S.C.J. No. 54, [2011] 3 S.C.R. 505, (S.C.C.).
7 R. v. Silvini, [1991] O.J. No. 1931, 68 C.C.C. (3d) 251 (Ont. C.A.).
8 R. v. Fischer, [1987] S.J. No. 53, 31 C.C.C. (3d) 303 (Sask. C.A.).
9 R. v. Bordonaro, [1986] O.J. No. 607, 20 O.A.C. 239 (Ont. C.A.).
10 Fanjoy v. R., [1985] S.C.J. No. 55, 21 C.C.C. (3d) 312 (S.C.C.).
11 R. v. Tran, [1994] S.C.J. No. 16, 92 C.C.C. (3d) 218 (S.C.C.).
12 R. v. Keegstra, [1995] S.C.J. No. 41, 98 C.C.C. (3d) 1 (S.C.C.).
13 Perka v. R., [1984] S.C.J. No. 40, 14 C.C.C. (3d) 385 (S.C.C.).
End of Document
HC2-637 Relevance of failure to testify.
HC2-637
HC2-637 Relevance of failure to testify. In deciding whether a conviction gives rise to a miscarriage of justice,
the court of appeal may quite properly consider the failure of the accused to testify or call evidence, but only where
there is a strong inference of guilt. 1 In deciding to apply the proviso, and there is sufficient evidence to convict, the
appeal court may consider the accused's failure to testify. 2 The evidentiary effect of an accused's silence has been
judicially considered.3
Relevance of failure to object. The failure to object can inform an appeal court's assessment of the adequacy of
a trial judge's instruction, especially where the appellant relies on non-direction. However, where the omitted
instruction was essential to a fair trial, counsel's failure to object is no answer to the ground of appeal of inadequate
jury instruction.4
Footnote(s)
1 R. v. Starr, [1972] N.B.J. No. 73, 7 C.C.C. (2d) 519 (N.B.C.A.).
2 R. v. B. (J.N.), [1989] M.J. No. 106, 48 C.C.C. (3d) 71 (Man. C.A.); R. v. Leaney, [1989] S.C.J. No. 90, 50 C.C.C.
(3d) 289 (S.C.C.).
3 R. v. L. (W.), [2015] O.J. No. 275, 319 C.C.C. (3d) 589 (Ont. C.A.); R. v. Noble, [1997] S.C.J. No. 40, [1997] 1
S.C.R. 874 (S.C.C.).
4 R. v. Maciel, [2007] O.J. No. 1034, 219 C.C.C. (3d) 516 (Ont. C.A.); R. v. Jacquard, [1997] S.C.J. No. 21 at para. 37,
[1997] 1 S.C.R. 314 (S.C.C.).
End of Document
HC2-638 Improper rulings on evidence.
HC2-638
HC2-638 Improper rulings on evidence. “Where the error lies in the improper admission of evidence, that error
will be harmless within the meaning of s. 686(1)(b)(iii) if the improperly admitted evidence was so insignificant that it
could not have affected the verdict, or if the Crown's case apart from the improperly received evidence can be
characterized as so overwhelming as to render a conviction almost inevitable.” It is an error to allow expert crime
scene evidence to express an opinion regarding a criminal profile of the perpetrator or whether the crime scene was
staged. Juries tend to overestimate the value of expert opinion evidence, especially when given by an obviously
well-qualified expert.1 Improperly admitted prejudicial evidence requires a new trial, 2 unless it can be concluded that
no reasonable jury, properly instructed and acting judicially, could have failed to convict on the admissible evidence
presented at trial.3 Where evidence should have been excluded under subs. 24(2) of the Charter, its erroneous
admission will generally amount to a substantial wrong or miscarriage of justice, thereby making s. 686(1)(b)(iii)
inapplicable.4
Footnote(s)
1 R. v. Klymchuk, [2005] O.J. No. 5094 at para. 49, 203 C.C.C. (3d) 341 (Ont. C.A.), leave to appeal refused [2011]
S.C.C.A. No. 332 (S.C.C.).
2 R. v. John, [1985] S.C.J. No. 72, 23 C.C.C. (3d) 326 (S.C.C.); R. v. Wildman, [1984] S.C.J. No. 43, 14 C.C.C. (3d)
321 (S.C.C.); R. v. Alward, [1977] S.C.J. No. 63, 39 C.R.N.S. 281 at 306 (S.C.C.).
3 R. v. Leaney, [1987] A.J. No. 930, 38 C.C.C. (3d) 263 (Alta. C.A.), affd in part [1989] S.C.J. No. 90, 50 C.C.C. (3d)
289 (S.C.C.).
4 R. v. Elshaw, [1991] S.C.J. No. 68, 67 C.C.C. (3d) 97 (S.C.C.).
End of Document
HC2-639 Relevance of counsel's address.
HC2-639
HC2-639 Relevance of counsel's address. “[N]ot every mistake or omission in a trial judge's charge can be
rectified by reference to counsel's address. … [A] trial judge's failure to instruct a jury correctly on the law cannot be
cured in this way. The jury will have been told that the facts are for them to determine, but they must take the law
from the trial judge. That inevitable instruction will preclude them from also taking the law from counsel. …
[C]ounsel's submissions may be used to rectify any deficiency in the trial judge's charge, save for a deficiency
relating to the law that is to be applied. That would include reviews of evidence and matters of common sense, the
wisdom of which, once told to the jury, would be clear to them. … Reliance on counsel's submissions will be
particularly appropriate where both counsel are in agreement and have stated the evidence, or the common sense
proposition, correctly. Where that is not the case and counsel disagree, the ability to rely on the correct or
appropriate version will require an analysis of the nature of the disagreement, viewed in the context of the whole of
the case.”1
Footnote(s)
1 R. v. Gray, [2012] A.J. No. 159 at paras. 19-21 (Alta. C.A.), leave to appeal refused [2012] S.C.C.A. No. 163 (S.C.C.).
End of Document
HC2-640 Procedural proviso: section 686(1)(b)(iv).
HC2-640
of the Court of Appeal > (c) Grounds for Dismissing Appeal > (ii) Procedural Irregularity
(ii) Procedural Irregularity
HC2-640 Procedural proviso: section 686(1)(b)(iv). This provision was added to reverse the cases holding that
procedural errors causing a loss of jurisdiction in the trial courts could not be cured, even on appeal. 1
Curing provision. This section can be used to cure:
• The non-prejudicial absence of the accused from a chambers meeting. 2

22. Other non-prejudicial absences of the accused from trial. 3
15• Juror replacement errors.4
• An oversight in adopting voir dire evidence at trial.5
11• The failure to arraign the accused.6
11• A judgment of conviction given in the accused's absence. 7
6• Errors regarding the child witness inquiry under s. 16 of the Canada Evidence Act.8
The section has been held applicable in principle even to Crown appeals. 9 However, the section cannot cure an
impropriety in the jury selection procedures such that a lawfully constituted jury was not selected. 10
Examples. An appeal court refused to apply this section where the accused's right to be present under s. 650(1) of
the Criminal Code was violated by his absence at mid-trial chambers conference with counsel where trial judge
discussed the case and urged resolution. 11 As well, an appeal court held that absent exceptional circumstances, s.
686(1)(b)(iv) will not save a breach of s. 650(1) of the Criminal Code caused by the conduct of the pre-charge
conference in chambers in the absence of the accused. 12
Page 109 of 170
HC2-640 Procedural proviso: section 686(1)(b)(iv).
Footnote(s)
2 R. v. Quick, [1993] B.C.J. No. 1205, 82 C.C.C. (3d) 51 (B.C.C.A.).
3 R. v. Mohebtash, [2007] B.C.J. No. 1164, 220 C.C.C. (3d) 244 (B.C.C.A.); R. v. Cloutier, [1988] O.J. No. 570, 43
C.C.C. (3d) 35 (Ont. C.A.); R. v. Hollwey, [1992] O.J. No. 348, 71 C.C.C. (3d) 314 (Ont. C.A.).
4 R. v. Singh, [1996] B.C.J. No. 1410, 108 C.C.C. (3d) 244 (B.C.C.A.).
5 R. v. Heidemann, [1988] A.J. No. 459, 87 A.R. 38 (Alta. C.A.).
6 R. v. Mitchell, [1997] O.J. No. 5148, 121 C.C.C. (3d) 139 (Ont. C.A.).
7 R. v. Joinson, [1986] B.C.J. No. 1333, 32 C.C.C. (3d) 542 (B.C.C.A.).
8 R. v. Peterson, [1996] O.J. No. 714, 106 C.C.C. (3d) 64 (Ont. C.A.); R. v. Krack, [1990] O.J. No. 991, 56 C.C.C. (3d)
555 (Ont. C.A.); (CAN) Canada Evidence Act, R.S.C. 1985, c. C-5.
9 R. v. Katoch, [2009] O.J. No. 3456, 246 C.C.C. (3d) 423 (Ont. C.A.) (where trial judge withdrew challenge for cause
where potential juror answered questions appropriately leaving no basis for challenge to proceed).
10 R. v. Rowbotham, [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. Bain, [1989] O.J. No. 111, 68 C.R. (3d) 50
(Ont. C.A.).
11 R. v. Schofield, [2012] O.J. No. 777, 2012 ONCA 120 (Ont. C.A.).
12 R. v. E. (F.E.), [2011] O.J. No. 5738, at para. 52, 2011 ONCA 783 (Ont. C.A.) (“Final instructions to a jury in a criminal
case are of the utmost importance to the person whose liberty is at stake[;] … instructions explain the basis upon which
the accused's liability will be decided and his or her defence assessed[;] … accused is entitled to hear why some
instructions are included and others are omitted from the charge — firsthand; the complete version; and not a synopsis
after the fact[;] … exclusion of an accused from the entire pre-charge conference undermines both the appearance and
the reality of the due administration of justice”).
End of Document
HC2-641 Where basis in law.
HC2-641
of the Court of Appeal > (d) Appeal After Guilty Plea
(d) Appeal After Guilty Plea
HC2-641 Where basis in law. In theory an accused can appeal from conviction even after a plea of guilty,
provided there is a basis in law to allow him to change his plea or to find his plea was invalid or his admissions did
not support the offence of which he was convicted. 1 A withdrawal of a guilty plea was allowed on appeal by accused
from conviction and new trial ordered where the accused claimed that police threatened to charge his mother and
other family members and no responding materials were filed by the Crown. 2
Undisclosed evidence. Where the accused seeks to withdraw a guilty plea on the ground of undisclosed
evidence, they must show that there is a reasonable possibility that the fresh evidence would have influenced their
decision to plead guilty.3 The governing test is objective: would a reasonable and properly informed person, put in
the same position, have run the risk of standing trial with timely knowledge of the undisclosed evidence, when
assessed along with the evidence already known.
Example situations. The accused was entitled to withdraw a plea of guilty on appeal in the following
circumstances:
• The evidence on the appeal showed the accused was in a disturbed state of mind at the time and was
under the false impression that if he did not plead guilty the Crown would proceed on a charge of first
degree murder.4
23. A statement by the trial judge might have been understood by the accused as erroneously meaning he was
liable as a party based on mere presence, and on the facts as alleged there was no evidence that would
render the accused liable as a party.5
16• The accused was improperly pressured by defence counsel into the plea. 6 While counsel has a duty to give
advice, even in strong and firm terms, he must not pressure the accused into a plea of guilty that is not free
and voluntary, untainted by any threats or promises that cause the accused to admit that he committed the
offence when he does not wish to do so.
• The accused pleaded guilty to avoid spending a week in jail awaiting trial after he was remanded in custody
after failing to appear for the original trial date. 7
Page 111 of 170
12• The accused pleaded guilty to avoid loss of his job.8

12• The accused received erroneous advice from his counsel due to counsel's mishearing of recorded police
communications.9
Examples. The accused was not entitled to withdraw a plea of guilty on appeal in the following circumstances:
7• The sentence imposed by the trial judge was substantially greater than the submission by Crown and
defence counsel, there being no evidence that the accused did not understand the charges nor any
evidence that the plea was equivocal.10
3• The co-accused was acquitted at a trial where the facts adduced at the plea indicated that the appellant
was convicted as a principal. The acquittal of the co-accused determined nothing in respect of the
appellant's conviction.11
• The accused's convictions resulted in adverse immigration implications which were automatic, where the
accused had mistakenly believed those implications were merely “probable” and he had decided “to run the
risk”.12
3• The accused failed to file an affidavit attesting to his state of mind when the pleas were entered and failed
to provide an explanation for his failure to do so. Thus, the court could only infer that he chose not to
provide an affidavit because his evidence would not support the finding required to permit withdrawal of the
plea.13
Footnote(s)
1 R. v. Kumar, [2011] O.J. No. 618, 273 O.A.C. 130 (Ont. C.A.); Brosseau v. R., [1968] S.C.J. No. 89, [1969] 3 C.C.C.
129 (S.C.C.); R. v. Newman, [1993] O.J. No. 536, 79 C.C.C. (3d) 394 (Ont. C.A.); R. v. Ballegeer, [1968] M.J. No. 9,
[1969] 3 C.C.C. 353 (Man. C.A.); Colligan v. R., [1955] Q.J. No. 5, 21 C.R. 120 (Que. C.A.). A withdrawal of guilty plea
was allowed on appeal by accused from conviction and new trial ordered where the accused claimed that police
threatened to charge his mother and other family members and no responding materials were filed by the Crown: R. v.
Nevin, [2006] N.S.J. No. 235, 210 C.C.C. (3d) 81 (N.S.C.A.). Also, where after an unfavourable Charter ruling, the
accused entered a guilty plea on the advice of counsel who misinformed him of the impact his guilty plea would have on
his ability to appeal the Charter ruling: R. v. Duong, [2006] B.C.J. No. 1452, 2006 BCCA 325 (B.C.C.A.).
2 R. v. Nevin, [2006] N.S.J. No. 235, 210 C.C.C. (3d) 81 (N.S.C.A.).
3 R. v. Taillefer, [2003] S.C.J. No. 75, 179 C.C.C. (3d) 353 (S.C.C.).
4 R. v. Hansen, [1977] M.J. No. 124, 37 C.C.C. (2d) 371 (Man. C.A.). Cf. R. v. W. (M.A.), [2008] O.J. No. 2738, 237
C.C.C. (3d) 560 (Ont. C.A.) (depression insuffıcient to undermine validity and justify withdrawal of guilty plea).
5 R. v. Voorwinde, [1975] B.C.J. No. 124, 29 C.C.C. (2d) 413 (B.C.C.A.).
6 R. v. Lamoureux (1984), 13 C.C.C. (3d) 101, 40 C.R. (3d) 369 (Que. C.A.); R. v. Sutton, [2012] N.J. No. 204, 2012
NLCA 35 (N.L.C.A.).
7 R. v. Cesari, [1986] J.Q. no 3, 50 C.R. (3d) 93 (Que. C.A.). See also R. v. Brewer, [2012] B.C.J. No. 1496, 2012
BCPC 239 (B.C. Prov. Ct.) (guilty plea entered in effort to be released from custody; in addition, accused did not
appreciate nature of offence to which he pleaded guilty).
8 R. v. Bawkovy, [2009] A.J. No. 595, 457 A.R. 64 (Alta. C.A.).
9 R. v. Henry, [2011] O.J. No. 1697, 2011 ONCA 289 (Ont. C.A.).
10 R. v. Rubenstein, [1987] O.J. No. 1118, 41 C.C.C. (3d) 91 (Ont. C.A.).
11 R. v. Hick, [1991] S.C.J. No. 85, [1991] 3 S.C.R. 383 (S.C.C.).
12 R. v. Tyler, [2007] B.C.J. No. 434, 218 C.C.C. (3d) 400 (B.C.C.A.) (immigration consequences).
Page 112 of 170
13 R. v. Williams, [2012] B.C.J. No. 1522, 2012 BCCA 314 (B.C.C.A.).
End of Document
HC2-642 Where new trial ordered.
HC2-642
of the Court of Appeal > (e) New Trials > (i) Appeals From Trial Without Jury
(e) New Trials
(i) Appeals From Trial Without Jury
HC2-642 Where new trial ordered. Subject to the provision below regarding proceedings in Nunavut, if an appeal
is taken in respect of proceedings under Part XIX of the Criminal Code, dealing with trial without jury for indictable
offences, and the court of appeal orders a new trial under Part XXI, the following provisions apply: 1
• 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.
24. 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.
17• 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.
• Despite whether or not an accused has requested that the new trial, if ordered, should be held before a
court composed of a judge and jury, if the conviction against which the accused appealed was for an
offence mentioned in s. 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.
Page 114 of 170
HC2-642 Where new trial ordered.
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(5); s. 553 sets out those offences over which a provincial court
judge has absolute jurisdiction to try an accused.
End of Document
HC2-643 Rules for new trial.
HC2-643
of the Court of Appeal > (e) New Trials > (i) Appeals From Trial Without Jury > A. Nunavut
(e) New Trials
(i) Appeals From Trial Without Jury
A. Nunavut
HC2-643 Rules for new trial. If an appeal is taken in respect of proceedings under Part XIX and the Court of
Appeal of Nunavut orders a new trial under Part XXI, the following provisions apply: 1
• If the accused, in the 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.
25. If the accused, in the 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, and without a further preliminary inquiry, be held before a judge, acting
under Part XIX, other than a judge who tried the accused in the first instance, unless the Court of Appeal of
Nunavut directs that the new trial be held before the judge who tried the accused in the first instance.
18• If the Court of Appeal of Nunavut 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.
• Despite whether or not an accused has requested that the new trial, if ordered, should be held before a
court composed of a judge and jury, if the conviction against which the accused appealed was for an
indictable offence mentioned in s. 553, the new trial shall be held before a judge acting under Part XIX,
other than the judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut
directs that the new trial be held before the judge who tried the accused in the first instance.
Page 116 of 170
HC2-643 Rules for new trial.
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(5.01); s. 553 sets out those offences over which a provincial court
judge has absolute jurisdiction to try an accused.
End of Document
HC2-644 Election if new trial a jury trial.
HC2-644
of the Court of Appeal > (e) New Trials > (ii) Where New Jury Trial Ordered > A. Election
by Accused
(e) New Trials
(ii) Where New Jury Trial Ordered
A. Election by Accused
HC2-644 Election if new trial a jury trial. Subject to the provision below regarding proceedings in Nunavut, if a
new trial ordered by the court of appeal is to be held before a court composed of a judge and jury, 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. Such an election shall be deemed to be an exercise of the accused's right to re-elect, and the related
requirements for giving notice and transmitting the record in respect of such a re-election apply with such
modifications as the circumstances require.1
Re-elections. Where the Supreme Court of Canada orders a retrial after a trial by judge and jury, the accused may
re-elect trial by judge alone with the consent of the Crown. 2
New trial under section 686(2)(b). A “new trial” means a full, new trial. There is no authority for the court of
appeal to order a resumption of the original trial. 3 If an accused is able to raise the issue of mental disorder for the
first time on appeal and the court of appeal concludes that it cannot determine the NCROAMD issue, it will order a
new trial under s. 686(1)(a)(iii) and (2)(b). In such a case it is not proper to limit the new trial to a determination of
the NCROAMD issue.4 However, the unique nature of entrapment permits use of s. 686(8) to limit a new trial to the
post-verdict issue of entrapment.5 If on an appeal from conviction the accused is entitled to an acquittal because a
conviction based on the theory at trial would be unreasonable, a new trial cannot be ordered on a new theory of
guilt advanced by the prosecution for the first time on appeal. 6
Section 686(8) permits the court of appeal to order that a new trial be held with respect to an included offence
only.7 Where the appellant is convicted of an included offence and is successful on appeal from that conviction in
obtaining a new trial, the court of appeal has no jurisdiction to order the new trial to be on the original greater
charge unless the prosecution successfully appeals that acquittal. 8 Similarly, where the accused was convicted of
Page 118 of 170
one count and acquitted of three others and successfully appealed on the ground of improper jury selection, the
new trial is limited to the one count absent a prosecution appeal from the acquittals. 9 However an “acquittal” entered
by virtue of the Kienapple principle ancillary to a conviction on another count can be set aside by the appeal court if
the conviction is set aside and a new trial ordered on both counts. 10 Similarly, where, on appeal, a conviction is
quashed and an acquittal entered, the case may be remitted to the trial judge to determine whether convictions
should be entered on charges previously stayed because of the Kienapple rule against multiple convictions.11
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(5.1); the right of an accused to re-elect is found under s. 561, and
the notice and transmission requirements referred to are found under subs. 561(5).
2 R. v. Cook, [2002] B.C.J. No. 714, 164 C.C.C. (3d) 540 (B.C.C.A.).
3 R. v. Gunn, [1982] S.C.J. No. 23, 66 C.C.C. (2d) 294 (S.C.C.); R. v. Thomas, [1998] S.C.J. No. 90, [1998] 3 S.C.R.
535 (S.C.C.).
4 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a)(iii) and (2)(b); R. v. Warsing, [1998] S.C.J. No. 91, [1998] 3
S.C.R. 579 (S.C.C.). The same obtains where the Crown pursues a successful appeal because NCROAMD. New trial
ordered must be ordered and not simply retrial of insanity issue: R. v. Wells, [2004] A.J. No. 1496, 193 C.C.C. (3d) 43
(Alta. C.A.).
5 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(8); R. v. Pearson, [1998] S.C.J. No. 86, [1998] 3 S.C.R. 620
(S.C.C.).
6 Savard v. R., [1945] S.C.J. No. 42, 1 C.R. 105, 85 C.C.C. 254 (S.C.C.).
7 R. v. C. (D.K.), [1979] O.J. No. 818, 47 C.C.C. (2d) 186 (Ont. C.A.); R. v. Ruptash, [1982] A.J. No. 424, 68 C.C.C.
(2d) 182 (Alta. C.A.).
8 R. v. Guillemette, [1986] S.C.J. No. 24, 26 C.C.C. (3d) 1 (S.C.C.).
9 R. v. Rowbotham, [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (Ont. C.A.).
10 R. v. Sullivan, [1991] S.C.J. No. 20, 63 C.C.C. (3d) 97 (S.C.C.); Rickard v. R., [1970] S.C.J. No. 56, [1970] S.C.R.
1022 (S.C.C.); R. v. P. (D.W.), [1989] S.C.J. No. 77, 49 C.C.C. (3d) 417 (S.C.C.).
11 R. v. Pringle, [1989] S.C.J. No. 69, 48 C.C.C. (3d) 449 (S.C.C.).
End of Document
HC2-645
of the Court of Appeal > (e) New Trials > (ii) Where New Jury Trial Ordered > B. Nunavut
(e) New Trials
(ii) Where New Jury Trial Ordered
B. Nunavut
HC2-645 Election if new trial a jury trial. If a new trial ordered by the Court of Appeal of Nunavut is to be held
before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the
trial heard before a judge without a jury. Such an election shall be deemed to be an exercise of the accused's right
to re-elect, and the related requirements for giving notice and transmitting the record in respect of such a re-election
apply with such modifications as the circumstances require. 1
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(5.2); the right of an accused to re-elect in Nunavut is found under
s. 561.1, and the notice and transmission requirements referred to are found under subs. 561.1(6).
End of Document
HC2-646 Different judge.
HC2-646
of the Court of Appeal > (e) New Trials > (iii) Presiding Judge
(e) New Trials
(iii) Presiding Judge
HC2-646 Different judge. In virtually every case where a new trial is ordered it is before a different judge, 1 though
it need not be.2 However, in some circumstances it has been ordered that the new trial be held before the same
judge where it will obviate the necessity of rehearing substantial evidence. 3 One court of appeal has commented
that where a Charter s. 11(b) ruling is reversed on Crown appeal “[o]rdinarily, we would order that the matter be
remitted to the trial judge and have him complete the trial.” 4 In summary conviction appeals under subs. 834(1)
there is express power to remit the matter to the same judge. 5 The general rule in criminal appeals expressed in
subs. 686(5) that a different judge must preside at a new trial ordered by the appeal court unless the appeal court
expressly orders otherwise is not applicable to an appeal in a dangerous offender proceeding. 6 In those cases the
question of whether the judge who presided at the first hearing can preside at the new hearing falls to be
determined on the particular circumstances of each case under the common law principles of reasonable
apprehension of bias.
Footnote(s)
1 R. v. Young, [1994] O.J. No. 2174 (Ont. C.A.); R. v. Braun, [2000] M.J. No. 366, 149 Man. R. (2d) 144 (Man. Q.B.);
R. v. Pincivero, [2000] O.J. No. 3602, 8 M.V.R. (4th) 147 (Ont. S.C.J.).
2 R. v. G.(M.), [1992] O.J. No. 478, 8 O.R. (3d) 337 (Ont. C.A.).
3 R. v. Pincivero, [2000] O.J. No. 3602, 8 M.V.R. (4th) 147 (Ont. S.C.J.). See also R. v. Connors, [2005] N.J. No. 183,
248 Nfld. & P.E.I.R. 344 (N.L.T.D.).
4 R. v. G. (M.), [1992] O.J. No. 478, 8 O.R. (3d) 337 (Ont. C.A.). To same effect see R. v. Yelle, [2006] A.J. No. 577,
2006 ABCA 160 (Alta. C.A.), Crown application to re-open dismissed [2006] A.J. No. 1194 (Alta. C.A.).
5 R. v. Wilcox, [2001] N.S.J. No. 85, 152 C.C.C. (3d) 157 (N.S.C.A.).
6 R. v. Kelly, [2005] B.C.J. No. 1559, 199 C.C.C. (3d) 336 (B.C.C.A.).
Page 121 of 170
HC2-646 Different judge.
End of Document
HC2-647 Ancillary orders.
HC2-647
of the Court of Appeal > (e) New Trials > (iv) Included Offences
(e) New Trials
(iv) Included Offences
HC2-647 Ancillary orders. Subsection 686(8) permits the court of appeal to order that a new trial be held with
respect to an included offence only.1 Where the trial judge had refused to instruct the jury with respect to an
alternative way of committing the same offence, the new trial must be on all available modes of committing the
offence, including the mode for which the accused had already been acquitted. The Crown's successful appeal was
because the trial judge erred in failing to leave an available mode of commission of the offence of aggravated
assault. The new trial must be on all available modes of committing the offence. 2 The section was invoked to limit
the further trial to the issue of automatism or insanity after the Crown's successful appeal from the accused's
acquittal on the basis of automatism.3 An order for a new trial may be dependent upon an additional order under
subs. (8) allowing the amendment of an indictment to conform with the evidence. 4 See generally regarding the
power to amend.5 The court's ancillary jurisdiction to make an order to prevent the frustration of an appeal allows it
to make an order to continue a publication ban regarding the name of a young offender tried as an adult pending
determination of an appeal to decide whether or not the publication ban should have been made. 6 The court of
appeal has a residual discretion to stay the charge where further proceedings would be an abuse. 7 But where there
is no evidence to support a conviction the accused is entitled to an acquittal and not merely a stay. 8 Subsection
686(8) authorizes an appellate court to order the continuation of a trial where it sets aside a stay of proceedings, but
only where continuation of the trial is what “justice requires” in the particular circumstances of the case. Manifestly,
an order under s. 686(8) must not be at variance with the underlying judgment. Continuation of the trial will not
always be preferable or even possible. It is an order that can properly be made only where the interests of justice
require it, where there is no undue prejudice to the parties and where no unfairness would result. Further, the trial
court to which the matter is remitted should retain its discretion to instead order a new trial where resumption of the
interrupted proceedings proves to be impractical or unfair. 9
Footnote(s)
Page 123 of 170
HC2-647 Ancillary orders.
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 686(8); R. v. C. (D.K.), [1979] O.J. No. 818, 47 C.C.C. (2d) 186 (Ont.
C.A.); R. v. Ruptash, [1982] A.J. No. 424, 68 C.C.C. (2d) 182 (Alta. C.A.).
2 R. v. MacKay, [2005] S.C.J. No. 81, [2005] 3 S.C.R. 725 (S.C.C).
3 R. v. Luedecke, [2008] O.J. No. 4049, 236 C.C.C. (3d) 317 (Ont. C.A.); R. v. Paul, [2010] O.J. No. 2377, 2010
ONSC 3254 (Ont. S.C.J.) (summary conviction appeal court returned case to trial court to specifically address the
second part of the three-prong test as set out in R. v. Grant, [2009] S.C.J. No. 32, 2009 SCC 32 (S.C.C.)).
4 R. v. Elliott, [1977] S.C.J. No. 122, 38 C.C.C. (2d) 177 (S.C.C.); Lake v. R., [1968] S.C.J. No. 78, [1969] 2 C.C.C.
224 (S.C.C.).
5 R. v. Daoust, [2004] S.C.J. No. 7, 180 C.C.C. (3d) 449 (S.C.C.); R. v. Montgomery, [2009] B.C.J. No. 175, 241
C.C.C. (3d) 469 (B.C.C.A.) (weapons offence count amended by substituting the word “prohibited” in place of the word
“restricted”).
6 R. v. M. (F.), [2007] B.C.J. No. 1840, 2007 BCCA 393 (B.C.C.A.).
7 R. v. Power, [1994] S.C.J. No. 29, [1994] 1 S.C.R. 601 (S.C.C.); R. v. Codina, [1999] O.J. No. 249, 132 C.C.C. (3d)
338 (Ont. C.A.); R. v. Rain, [1998] A.J. No. 1059, 130 C.C.C. (3d) 167 (Alta. C.A.).
8 R. v. Hinse, [1997] S.C.J. No. 1, [1997] 1 S.C.R. 3 (S.C.C.).
9 R. v. Bellusci, [2012] S.C.J. No. 44, 2012 SCC 44 (S.C.C.).
End of Document
HC2-648 Restitution or forfeiture of property.
HC2-648
of the Court of Appeal > (e) New Trials > (iv) Included Offences
(e) New Trials
(iv) Included Offences
HC2-648 Restitution or forfeiture of property. The operation of certain orders for compensation or for the
restitution of property or for the forfeiture of property are suspended until the expiration of the period prescribed by
rules of court for the giving of notice of appeal or of notice of application for leave to appeal, unless the accused
waives an appeal. In the case where such notice is given, the orders will continue to be suspended until the appeal
or application for leave to appeal has been determined. 1
Annulling or varying order. The court of appeal may by order annul or vary an order made by the trial court with
respect to compensation or the restitution of property within the limits prescribed by the provision under which the
order was made by the trial court, whether or not the conviction is quashed. 2
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 689(1); this provision applies specifically in respect of orders for
compensation or the restitution or property under s. 738 or 739, or orders of forfeiture of property under subs. 164.2(1)
or 462.37(1) or (2.01).
End of Document
HC2-649 Appeal from conviction.
HC2-649
MISCARRIAGES OF JUSTICE > 1. Appeals of Indictable Offences > (6) Appeals to the
Supreme Court of Canada > (a) General
(6) Appeals to the Supreme Court of Canada
(a) General
HC2-649 Appeal from conviction. A person who is convicted of an indictable offence and whose conviction is
affirmed by the court of appeal may appeal to the Supreme Court of Canada on any question of law on which a
judge of the court of appeal dissents, or on any question of law, if leave to appeal is granted by the Supreme Court
of Canada.1
Appeal where acquittal set aside. A person who is acquitted of an indictable offence other than by reason of a
verdict of not criminally responsible on account of mental disorder and whose acquittal is set aside by the court of
appeal may appeal to the Supreme Court of Canada on 1) any question of law on which a judge of the court of
appeal dissents, 2) on any question of law, if the court of appeal enters a verdict of guilty against the person, or 3)
on any question of law, if leave to appeal is granted by the Supreme Court of Canada. 2
Notice of appeal. No appeal lies to the Supreme Court of Canada unless notice of appeal in writing is served by
the appellant on the respondent in accordance with the Supreme Court Act.3
Footnote(s)
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 694; (CAN) Supreme Court Act, R.S.C. 1985, c. S-26.
End of Document
HC2-650 Order of the Supreme Court of Canada.
HC2-650
Supreme Court of Canada > (a) General
(a) General
HC2-650 Order of the Supreme Court of Canada. The Supreme Court of Canada may, on an appeal under Part
XXI, make any order that the court of appeal might have made and may make any rule or order that is necessary to
give effect to its judgment.1 If a new trial ordered by the Supreme Court of Canada is to be held before a court
composed of a judge and jury, 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. The election is deemed to be a re-election. 2 However, if the
new trial is to be held before a judge and jury in Nunavut, the accused may, with the consent of the prosecutor,
elect to have the trial heard before a judge without a jury. The election is also deemed to be a re-election. 3 This
does not allow the Supreme Court of Canada, in all circumstances, to make a decision that, in its opinion, the court
of appeal could and should have made. In the absence of an appeal by the Crown, the accused cannot leave the
Supreme Court with less than what the court of appeal ordered. 4 A panel of the Supreme Court of Canada
considering a leave application was authorized by s. 695(1) of the Code to make an order releasing trial exhibits for
forensic examination.5 Where the Supreme Court orders a retrial after a trial by judge and jury, the accused may re-
elect trial by judge alone with the consent of the Crown. 6
Footnote(s)
4 R. v. Barnes, [1991] S.C.J. No. 17, 63 C.C.C. (3d) 1 (S.C.C.).
5 R. v. Hay, [2010] S.C.J. No. 54, [2010] 3 S.C.R. 206 (S.C.C.).
6 R. v. Cook, [2002] B.C.J. No. 714, 164 C.C.C. (3d) 540 (B.C.C.A.).
End of Document
HC2-651 Question of law.
HC2-651
Supreme Court of Canada > (b) Grounds for Appeal
(b) Grounds for Appeal
HC2-651 Question of law. The question of whether a verdict was reasonable is a question of law. 1 A decision by
a provincial court of appeal regarding the application of the proviso involves a question of law alone. 2 The Supreme
Court of Canada has jurisdiction to grant leave to appeal on a question of law concerning sentencing matters. 3 The
fact that leave to appeal is granted with respect to an issue does not preclude the court from later deciding that the
question is not one of law.4
Substituted verdict. When a court of appeal dismisses the accused's appeal from the original conviction by
substituting a verdict on another count or part of the indictment, the court of appeal implicitly sets aside the
conviction by the trial court and also implicitly affirms the new conviction on the included offence. Thus, there are
co-existing rights of appeal for both the accused, under s. 691, and the Crown, under s. 693, from a court of appeal
order for a substituted verdict.5
Changes in the law. An appellant can rely on any changes in the decisional law in his favour after trial and even
after his case has been decided by an appeal court if his case “is still in the judicial system”. 6 To be in the judicial
system one of the following must apply: an appeal has been launched to the appeal court; an application for leave
has been made within the time; or an application for an extension of time is granted based on the criteria that
normally apply in such cases.
Judicial stay. A judicial stay of proceedings is tantamount to an acquittal. 7
Respondent argument. In general, a respondent in a criminal appeal under s. 691 may raise any argument that
supports the order of the court below,8 provided the requisite evidentiary basis exists on the record. 9
Footnote(s)
1 R. v. Yebes, [1987] S.C.J. No. 51, 36 C.C.C. (3d) 417 (S.C.C.); R. v. Biniaris, [2000] S.C.J. No. 16, [2000] 1 S.C.R.
381 (S.C.C.).
Page 128 of 170
HC2-651 Question of law.
2 R. v. Jolivet, [2000] S.C.J. No. 28, [2000] 1 S.C.R. 751 (S.C.C.); Mahoney v. R., [1982] S.C.J. No. 41, 67 C.C.C.
(2d) 197 (S.C.C.).
3 Hill v. R., [1975] S.C.J. No. 138, 23 C.C.C. (2d) 321 (S.C.C.).
4 Demeter v. R., [1977] S.C.J. No. 60, 34 C.C.C. (2d) 137 (S.C.C.).
5 (CAN) Criminal Code, R.S.C. 1985, c. C-46; R. v. Biniaris, [2000] S.C.J. No. 16, [2000] 1 S.C.R. 381 (S.C.C.). See
also R. v. G. (A.), [2000] S.C.J. No. 18, [2000] 1 S.C.R. 439 (S.C.C.) and R. v. Molodowic, [2000] S.C.J. No. 17,
[2000] 1 S.C.R. 420 (S.C.C.).
6 R. v. Thomas, [1990] S.C.J. No. 71, 75 C.R. (3d) 352 (S.C.C.); R. v. Wigman, [1987] S.C.J. No. 13, 33 C.C.C. (3d)
97 (S.C.C.); R. v. Roberge, [2005] S.C.J. No. 49, [2005] 2 S.C.R. 469 (S.C.C.).
7 R. v. Kalanji, [1989] S.C.J. No. 71, 48 C.C.C. (3d) 459 (S.C.C.).
End of Document
HC2-652 Extension of time.
HC2-652
Supreme Court of Canada > (c) Extension of Time
(c) Extension of Time
HC2-652 Extension of time. The power to extend time under special circumstances in subs. 59(1) of the
Supreme Court Act 1 is a discretionary one. Although the court has traditionally adopted a generous approach in
granting extensions of time, a number of factors guide it in the exercise of its discretion, including:
• whether the applicant formed a bona fide intention to seek leave to appeal and communicated that
intention to the opposing party within the prescribed time
26. whether counsel moved diligently
19• whether a proper explanation for the delay has been offered;
• the extent of the dela;
13• whether granting or denying the extension of time will unduly prejudice one or the other of the parties, and
13• the merits of the application for leave to appeal2
Footnote(s)
1 (CAN) R.S.C. 1985, c. S-26.
2 R. v. Roberge, [2005] S.C.J. No. 49, [2005] 2 S.C.R. 469 (S.C.C.).
End of Document
HC2-653 Appeal by Attorney General.
HC2-653
Supreme Court of Canada > (d) Appeal by Crown
(d) Appeal by Crown
HC2-653 Appeal by Attorney General. The Attorney General may appeal to the Supreme Court of Canada
against a judgment of the court of appeal that either sets aside a conviction made pursuant to s. 675, or that
dismisses an appeal taken pursuant to s. 676(1)(a), (b) or (c) or s. 676(3). Such an appeal may be made on any
question of law on which a judge of the court of appeal dissents, or on any question of law, if leave to appeal is
granted by the Supreme Court of Canada.1
Right of Attorney General of Canada to appeal. The Attorney General of Canada 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 has under Part XXI. 2
Terms. Where leave to appeal is granted by the Supreme Court of Canada on a question of law pursuant to the
latter ground described above, that court may impose such terms as it sees fit. 3
Question of law. Leave granted on “any question of law” relates to any question of law that goes to the validity of
the verdict of acquittal. It does not extend to a question of law whose correct resolution would not affect the result
reached in the Court of Appeal.4 The question of whether evidence of a conspiracy is evidence of the conspiracy
alleged in the indictment is a question of law. 5 A finding that there is no evidence to go to the jury also raises a
question of law.6 A decision by a provincial court of appeal regarding the application of the proviso involves a
question of law alone.7
Substituted verdict. When a court of appeal dismisses the accused's appeal from the original conviction by
substituting a verdict on another count or part of the indictment, the court of appeal implicitly sets aside the
conviction by the trial court and also implicitly affirms the new conviction on the included offence. Thus, there are
co-existing rights of appeal for both the accused, under s. 691, and the Crown, under s. 693, from a court of appeal
order for a substituted verdict.8
Charter issue. Under s. 40(1) of Supreme Court Act, the judgment appealed against must be the final or other
judgment of the highest court of final resort in a province in which judgment can be had in the particular case. An
Page 131 of 170
HC2-653 Appeal by Attorney General.
appeal against a ruling on the constitutionality of a law that cannot be piggybacked onto Code proceedings is such
a judgment for the purposes of subs. 40(1), and that is the proper appeal route. 9
Dissent. A difference of opinion on legal issues amongst members of an appellate court is not sufficient to found
an appeal as of right under s. 693(1)(a). A dissent must be based on a question of law alone, not a question of
mixed fact and law.10
Accused's argument. In general, a respondent in a criminal appeal under s. 693 may raise any argument that
supports the order of the court below,11 provided the requisite evidentiary basis exists on the record. 12
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 693(1); s. 675 sets out the general rights of appeal of a person
convicted of an offence, while ss. 676(1)(a), (b) and (c) and s. 676(3) set out various rights of appeal for the Attorney
General.
4 R. v. Wigman, [1987] S.C.J. No. 13, 33 C.C.C. (3d) 97 (S.C.C.); R. v. Caouette, [1972] S.C.J. No. 111, 9 C.C.C. (2d)
449 (S.C.C.).
5 R. v. Cotroni, [1979] S.C.J. No. 47, 45 C.C.C. (2d) 1 (S.C.C.).
6 R. v. Cotroni, [1979] S.C.J. No. 47, 45 C.C.C. (2d) 1 (S.C.C.); R. v. Olan, [1978] S.C.J. No. 57, 41 C.C.C. (2d) 145
(S.C.C.); R. v. Caouette, [1972] S.C.J. No. 111, 9 C.C.C. (2d) 449 (S.C.C.).
7 R. v. Jolivet, [2000] S.C.J. No. 28, [2000] 1 S.C.R. 751 (S.C.C.); Mahoney v. R., [1982] S.C.J. No. 41, 67 C.C.C.
(2d) 197 (S.C.C.).
8 R. v. Biniaris, [2000] S.C.J. No. 16, [2000] 1 S.C.R. 381 (S.C.C.). See also R. v. G. (A.), [2000] S.C.J. No. 18, [2000]
1 S.C.R. 439 (S.C.C.) and R. v. Molodowic, [2000] S.C.J. No. 17, [2000] 1 S.C.R. 420 (S.C.C.).
9 (CAN) Supreme Court Act, R.S.C. 1985, c. S-26; R. v. Laba, [1994] S.C.J. No. 106, 94 C.C.C. (3d) 385 (S.C.C.).
10 R. v. Lariviere, [2001] S.C.J. No. 91, 160 C.C.C. (3d) 129 (S.C.C.).

End of Document
HC2-654 Appeal against affirmation of verdict of not criminally responsible
on account of mental disorder.
HC2-654
Supreme Court of Canada > (e) Verdict of Mental Unfitness
(e) Verdict of Mental Unfitness
HC2- 654 Appeal against affirmation of verdict of not criminally responsible on account of mental
disorder. A person who has been found not criminally responsible on account of mental disorder may appeal to the
Supreme Court of Canada if that verdict is affirmed on that ground by the court of appeal or if a verdict of guilty is
entered by the court of appeal under subpara. 686(4)(b)(ii) against that person. 1
Appeal against affirmation of verdict of unfit to stand trial. A person who is found unfit to stand trial and
against whom that verdict is affirmed by the court of appeal may appeal to the Supreme Court of Canada. 2
Grounds of appeal. An appeal under subsection either of the above provisions may be on any question of law on
which a judge of the court of appeal dissents, or on any question of law, if leave to appeal is granted by the
Supreme Court of Canada.3
Footnote(s)
End of Document
HC2-655
Supreme Court of Canada > (f) Presence of Accused
(f) Presence of Accused
HC2-655 Right of appellant to attend. Generally, an appellant who is in custody is entitled, if he or she desires,
to be present at the hearing of the appeal before the Supreme Court of Canada. 1 However, unless rules of court
provide that he is entitled to be present or the Supreme Court of Canada or a judge thereof gives him leave to be
present, an appellant who is in custody and who is represented by counsel is not entitled to be present before the
Supreme Court of Canada at the following: 2
• an application for leave to appeal

27. any proceedings that are preliminary or incidental to an appeal, or
20• at the hearing of the appeal
Footnote(s)
End of Document
HC2-656 General.
HC2-656
Supreme Court of Canada > (g) Legal Assistance for Accused
(g) Legal Assistance for Accused
HC2-656 General. Where the Supreme Court of Canada or a judge of that court is of the opinion that it is
desirable in the interests of justice that the accused should have legal assistance and it appears that the accused
does not have sufficient means to obtain that assistance, that court or judge may, at any time, assign counsel to act
on behalf of an accused who is party to an appeal to that court. 1
Counsel fees and disbursements. Where counsel is assigned pursuant to the above, and legal aid is not granted
to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by
the Attorney General who is the appellant or respondent, as the case may be, in the appeal. 2 If, in such a situation,
counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the
counsel may apply to the Registrar of the Supreme Court of Canada, and the registrar may tax the disputed fees
and disbursements.3
Footnote(s)
End of Document
HC2-657 Application for ministerial review.
HC2-657
MISCARRIAGES OF JUSTICE > 2. Applications for Ministerial Review — Miscarriages of Justice
— Part XXI.1 > (1) General
2. Applications for Ministerial Review — Miscarriages of Justice — Part XXI.1
(1) General
HC2-657 Application for ministerial review. An application for ministerial review on the grounds of miscarriage
of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence
under an Act of Parliament or a regulation made under an Act of Parliament or has been found to be a dangerous
offender or a long-term offender under Part XXIV and whose rights of judicial review or appeal with respect to the
conviction or finding have been exhausted. 1 Such an application must be made in the prescribed form and contain
the information and documents prescribed by the regulations. 2
Footnote(s)
End of Document
HC2-658 Review of application.
HC2-658
— Part XXI.1 > (1) General
(1) General
HC2-658 Review of application. Where the Minister of Justice receives an application for ministerial review
pursuant to the above, he shall review it in accordance with the regulations. 1
Powers of investigation. For the purposes of an investigation in relation to an application for ministerial review,
the Minister of Justice has and may exercise the powers of a commissioner under Part I of the Inquiries Act 2 and
the powers that may be conferred on a commissioner under s. 11 of that Act. 3
Delegation. The Minister of Justice may delegate in writing to any member in good standing of the bar of a
province, retired judge or any other individual who, in the opinion of the Minister, has similar background or
experience the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses,
compel them to give evidence and otherwise conduct an investigation pursuant to the preceding paragraph. 4
Footnote(s)
2 (CAN) R.S.C. 1985, c. I-11.
4 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 696.2(3); this provision applies despite subs. 11(3) of the Inquiries Act.
End of Document
HC2-659 Powers of the Minister — Definition of “Court of Appeal”.
HC2-659
— Part XXI.1 > (2) Powers of Minister
(2) Powers of Minister
HC2-659 Powers of the Minister — Definition of “Court of Appeal”. For the purposes of the provisions below,
“court of appeal” means the court of appeal, as that term is defined in s. 2, for the province in which the person to
whom an application under Part XXI.1 relates was tried. Under that section, “court of appeal” means the Court of
Appeal of the province, except in Prince Edward Island, where it means the Appeal Division of the Supreme Court. 1
Power to refer. If the Minister of Justice desires the opinion of the court of appeal with respect to any question in
relation to an application under Part XXI.1, he may refer such a question to that court, and it shall furnish its opinion
to the Minister accordingly.2
Powers of the Minister of Justice. On an application for ministerial review under Part XXI.1 the Minister of
Justice may either dismiss the application or, if the Minister is satisfied that there is a reasonable basis to conclude
that a miscarriage of justice likely occurred: 3
• direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a
person found to be a dangerous offender or a long-term offender under Part XXIV, a new hearing under
that Part, or
28. refer the matter at any time to the court of appeal for hearing and determination by that court as if it were
an appeal by the convicted person or the person found to be a dangerous offender or a long-term offender
under Part XXIV, as the case may be
Considerations. In making a decision pursuant to the above, the Minister of Justice shall take into account all
matters that the Minister considers relevant, including: 4
21• whether the application is supported by new matters of significance that were not considered by the courts
or previously considered by the Minister in an application in relation to the same conviction or finding under
Part XXIV
• the relevance and reliability of information that is presented in connection with the application, and
14• the fact that an application under this Part is not intended to serve as a further appeal and any remedy
available on such an application is an extraordinary remedy
Page 138 of 170
HC2-659 Powers of the Minister — Definition of “Court of Appeal”.
No appeal. A decision of the Minister of Justice made pursuant to an application for ministerial review under Part
XXI.1 is final and is not subject to appeal.5
Footnote(s)
End of Document
HC2-660 Reports and regulations — annual report.
HC2-660
— Part XXI.1 > (3) Annual Report
(3) Annual Report
HC2-660 Reports and regulations — annual report. Under Part XXI.1 the Minister of Justice shall within six
months after the end of each financial year submit an annual report to Parliament in relation to any applications for
ministerial review made under that part.1
Regulations. The Governor in Council may make regulations: 2
• prescribing the form of, the information required to be contained in and any documents that must
accompany an application under Part XXI.1
29. prescribing the process of review in relation to applications under Part XXI.1, which may include the
following stages, namely, preliminary assessment, investigation, reporting on investigation and decision,
and
22• respecting the form and content of the annual report described above
Footnote(s)
End of Document
HC2-455 Definitions.
HC2-455
Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue) (Gold) > XI. SENTENCING AND
OTHER POST-CONVICTION ORDERS > 1. Sex Offender Information > (1) General
XI. SENTENCING AND OTHER POST-CONVICTION ORDERS
1. Sex Offender Information
(1) General
HC2-455 Definitions. Part XV contains provisions relating to sex offender information and includes a number of
definitions that are applicable for the purposes of those provisions. 1 The meaning of the terms “crime of a sexual
nature”, “database” and “registration centre” can be found under s. 3 of the Sex Offender Information Registration
Act.2
“Ontario Act” means Christopher's Law (Sex Offender Registry), 2000,3 and “pardon” means a conditional pardon
granted under Her Majesty's royal prerogative of mercy or under s. 748, that has not been revoked.
Also defined are “Review Board”, 4 “verdict of not criminally responsible on account of mental disorder”, 5 and
“record suspension”.6
“Designated offence”. The term “designated offence” is defined for the purposes of the sex offender information
provisions. Coming within that definition are a significant number of offences under various provisions of the
Criminal Code in both its present and past versions. The offences have been broken down into paragraphs as
follows:7
a) Offences under the Code that relate primarily to sexual offences and offences involving children. Examples
include sexual exploitation, incest, child pornography, sexual assault and aggravated sexual assault to
name a few.
30. Offences under the Code that are serious but not typically sexually related. Examples include trespassing
at night, manslaughter, criminal harassment, kidnapping, and breaking and entering with the intent to
commit and indictable offence to name a few.
23• Sexual offences under the Criminal Code as it read before 1983 including rape, attempt to commit rape,
indecent assault, and assault with intent.
• The offences of sexual assault. Sexual assault with a weapon, threats to a third party and aggravated
sexual assault, as those offences read under the Criminal Code, c. C-34 of the Revised Statutes of
Canada, 1970 and c. 125 of the Statutes of Canada, 1980-81-82-8.
15• Sexual offences under the Criminal Code as it read prior to 1988 including sexual intercourse with a female
under age 14, gross indecency, and householder permitting defilement to name a few.
14• An attempt or conspiracy to commit an offence referred to in any of paras. (a), (c) and (d).
8• An attempt or conspiracy to commit an offence referred to in para. (b).
Page 141 of 170
HC2-455 Definitions.
Interpretation. For the purposes of the sex offender information provisions, a person who is convicted of, or found
not criminally responsible on account of mental disorder for, a designated offence does not include a young person
within the meaning of subs. 2(1) of the Youth Criminal Justice Act, or its predecessor act, unless they are given an
adult sentence within the meaning of that subsection for the offence. 8
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.011; the definitions under this section also apply to ss. 490.012-
490.032.
2 (CAN) S.C. 2004, c. 10.
3 (ON) S.O. 2000, c. 1.
4 A Review Board established or designated for a province under subs. 672.38(1).
5 This term has the same meaning as in (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 672.1.
6 This term has the same meaning as in s. 2(1) of the (CAN) Criminal Records Act, R.S.C. 1985, c. C-47, but cannot
have been revoked or ceased to have affect.
8 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.011(2); the predecessor Act to the (CAN) Youth Criminal Justice
Act, S.C. 2002, c. 1, was the (CAN) Young Offenders Act, R.S.C. 1985, c. Y-1. Note also that this subsection also
applies for the purposes of ss. 490.012-490.032.
End of Document
HC2-456 When order must be made.
HC2-456
OTHER POST-CONVICTION ORDERS > 1. Sex Offender Information > (2) Order to Comply with
Registration Requirements > (a) Making the Order
(2) Order to Comply with Registration Requirements
(a) Making the Order
HC2-456 When order must be made. A court is required to make an order requiring a person to comply with the
Sex Offender Information Registration Act 1 under one the following three circumstances:
1. Where the court imposes a sentence for sexual offences and offences involving children (as specified
under s. 490.011(1)(a)), sexual offences as specified under previous versions of the Criminal Code (as
specified under s. 490.11(1)(c), 490.011(1)(c.1), 490.011(1)(d.1)) or an attempt to commit such offences (s.
490.011(1)(e)); 2
2. if the Crown applies for an order to comply with the Act with respect to a person convicted for an offence
that is not sexual in nature, but includes violence, such as manslaughter, criminal harassment, kidnapping
or an attempt to commit such offence as specified under s. 490.011(1)(b) or 490.011(1)(f), if the prosecutor
establishes beyond a reasonable doubt that the person committed the offence with the intent to commit a
designated offence referred to in paras. (a), (c), (c.1), (d), (d.1) or (e); 3 or
3. where a sentence is imposed under any of the designated offences if the prosecutor establishes that the
person was convicted of, or found not criminally responsible on account of mental disorder for, an offence
referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition of “designated offence” in subs.
490.011(1)
or in para. (a) or (c) of the definition “designated offence” in s. 227 of the National Defence Act; the person
was not served with a notice under s. 490.021 or 490.02903 or under s. 227.08 of the National Defence Act
in connection with that offence; and no order was made under subs. (1) or under subs. 227.01(1) of the
National Defence Act in connection with that offence.4
If the court fails to consider the issue of compliance with the Sex Offender Information Registration Act, it is
required to set a date for a hearing to do so within 90 days after the day on which it imposes the sentence or
renders the verdict. To that end, the court may require the person to appear by closed-circuit television or any other
means that allows the court and the person to engage in simultaneous visual and oral communication, as long as
the person is given the opportunity to communicate privately with counsel if they are represented by counsel. 5
Page 143 of 170
HC2-456 When order must be made.
Procedure. The Crown is required to make application under s. 490.012 and the trial judge cannot first raise the
issue.6
Discharge. Section 490.012 does not apply where the accused receives a discharge rather than being convicted
and sentenced.7
Charter. Compliance with the Sex Offender Information Registration Act can be ordered under s. 490.012(1) of the
Criminal Code in respect of an offence committed before those provisions were in force. The legislation by its terms
was clearly intended to apply retrospectively to prior offences, and s. 11(i) of the Charter, which guarantees the
right of an offender to the benefit of lesser punishment if a sentence has been varied between the time he or she
committed the offence and is sentenced, does not apply to prohibit such retrospective operation. An order requiring
the offender to comply with the Act is not a “punishment” within the meaning of s. 11(i). 8
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
6 R. v. R. (B.E.), [2005] B.C.J. No. 1843, 32 C.R. (6th) 151 (B.C.C.A.).
7 R. v. Jayswal, [2011] O.J. No. 432, 2011 ONCJ 33 (Ont. C.J.); R. v. M. (B.A.), [2007] N.B.J. No. 511, 322 N.B.R.
(2d) 308 (N.B. Prov. Ct.).
8 R. v. Whiting, [2013] S.J. No. 710, 304 C.C.C. (3d) 342 (Sask. C.A.); R. v. B. (C.L.), [2010] A.J. No. 451, 253 C.C.C.
(3d) 486 (Alta. C.A.); R. v. C. (S.S.), [2008] B.C.J. No. 1148, 2008 BCCA 262 (B.C.C.A.); R. v. Warren, [2010] A.J.
No. 450, 254 C.C.C. (3d) 264 (Alta. C.A.); R. v. Lajoie, [2007] A.J. No. 601, 2007 ABPC 135 (Alta. Prov. Ct.); R. v.
Cross, [2006] N.S.J. No. 87, 2005 C.C.C. (3d) 289 (N.S.C.A.), leave to appeal refused [2006] S.C.C.A. No. 161
(S.C.C.).
End of Document
HC2-457 Duration of order.
HC2-457
Note 4
See R. v. L. (R.), [2018] O.J. No. 1522, 2018 ONCA 282 (Ont. C.A.), which held that s. 490.013(2.1) was not
overbroad nor grossly disproportionate, so did not violate s. 7 of the Charter. But see R. v. Ndhlovu, [2018] A.J.
No. 427, 2018 ABQB 277 (Alta. Q.B.), which found the provisions offended s. 7 of the Charter and could not be
saved by s. 1, as the removal of judicial discretion appeared to be arbitrary and the impairment of rights was not
minimal.
HC2-457 Duration of order. Such an order may last for various durations depending on the circumstances. It will
end 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or is
an offence for which the maximum term of imprisonment is two or five years. 1 The order will not end until 20 years
after it was made if the offence in connection with which it was made is one for which the maximum term of
imprisonment is 10 or 14 years. 2 Finally, it will apply to the person for life if:
1. The offence in connection with which it was made is one for which the maximum term of imprisonment is
life;3
2. An order is made under s. 490.012(1) and the person was convicted of or found not criminally responsible
for a specified sexual offence under s. 490.011(1);4
3. An order is made under s. 490.012(1) or 490.012(2) and the person is, or was at any time, subject to an
obligation under s. 490.019 or 490.02901, under s. 227.06 of the National Defence Act or under s. 36.1 of
the International Transfer of Offenders Act;5
Page 145 of 170
HC2-457 Duration of order.
4. An order made under s. 490.012(1) or 490.012(2) and the person is, or was at any time, subject to an order
made previously under s. 490.012 or s. 227.01 of the National Defence Act;6 or
5. The order is made under s. 490.012(3).7
An order made under the above provisions begins on the day on which it is made. 8
Notes
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.013(2)(a).
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.013(2)(b).
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.013(2)(c).
4 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.013(2.1).
End of Document
HC2-458 Appeal from order to comply with registration requirements.
HC2-458
Note 2
But see R. v. P. (R.), [2018] O.J. No. 2697, 2018 ONCA 473 (Ont. C.A.), which held that while the order should
have been for 20 years, not life, there was no longer a right to appeal such order imposed under s. 490.012(1). The
order could only be corrected by the judge who imposed it who, in these particular circumstances, retained inherent
jurisdiction to do so.
HC2-458 Appeal from order to comply with registration requirements. The prosecutor, or a person who is
subject to an order solely under s. 490.012(2) to comply with the Sex Offender Information Registration Act,1 may
appeal from a decision of the court making such an order on any ground of appeal that raises a question of law or
of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash the
order or make an order that may be made under that section. 2
Footnote(s)
1 (CAN) S.C. 2004, c. 10
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.014; this section allows for an appeal from an order made under s.
490.012 only. A new hearing is limited to the topic of whether to register the respondent as a sexual offender can be
ordered before the same trial judge: R. v. Van Den Boogaard, [2006] A.J. No. 1140, 2006 ABCA 256 (Alta. C.A.).
Page 147 of 170
HC2-458 Appeal from order to comply with registration requirements.
End of Document
HC2-459 Notice requirements.
HC2-459
HC2-459 Notice requirements. When a court or appeal court makes an order requiring a person to comply with
the Sex Offender Information Registration Act 1 pursuant to s. 490.012, the court shall cause the order to be read by
or to the person who is subject to it, and ensure that a copy of the order is given to that person. The court shall also
cause the person to be informed of the specified sections of the Sex Offender Information Act, s. 490.031 of the
Code, which makes it an offence to fail to comply with such an order, s. 490.0311 of the Code, which makes it an
offence to provide false or misleading information under the Act and s. 119.1 of the National Defence Act.2
The court shall also cause a copy of the order to be sent to the following: 3
1. The Review Board that is responsible for making a disposition with respect to that person, if applicable,
2. The person in charge of the place in which that person is to serve the custodial portion of a sentence or is
to be detained in custody as part of a disposition under Part XX.1, if applicable,
3. The police service whose member charged that person with the offence in connection with which the order
is made, and
4. The Commissioner of the Royal Canadian Mounted Police.
Notice on disposition by Review Board. A Review Board shall cause a copy of the order to be given to the
person who is subject to it when it directs under s. 672.54: 4
31. That the person be discharged absolutely; or

32. That the person be discharged subject to conditions, unless the conditions restrict the person's liberty in a
manner and to an extent that prevent them from complying with ss. 4, 4.1, 4.3 and 6 of the Sex Offender
Information Registration Act.
Notice before release. The person in charge of the place in which the person is serving the custodial portion of a
sentence, or is detained in custody, before their release or discharge shall give the person a copy of the order not
earlier than 10 days before their release or discharge. 5
Page 149 of 170
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, ss. 490.018(1)(a), (b), (c).
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.018(1)(d).
End of Document
HC2-460 Termination of order to comply with registration requirements.
HC2-460
Registration Requirements > (b) Application for Termination of Order
(b) Application for Termination of Order
HC2-460 Termination of order to comply with registration requirements. A person who is ordered to comply
with the Sex Offender Information Registration Act 1 may apply for a termination order in respect of such an order,
but only after a prescribed period of time depending upon the duration of the original order. In the case of the 10-
year order under s. 490.013(2)(a), an application for a termination order may not be made earlier than five years
after the order was made.2 In the case of an order that is applicable for 20 years, which was made pursuant to s.
490.013(2)(b), an application for a termination order may not be made earlier than 10 years after the order was
made.3 And in the case of an order that is applicable for life, imposed under either s. 490.013(2)(c), 490.013(2.1),
490.013(3) or 490.013(5), an application for a termination order may not be made earlier than 20 years after the
order was made.4 An order for termination may also be made on or after the day on which the person receives a
pardon or which a record suspension is ordered in respect of the original order. 5
Application for termination of multiple orders. If more than one order is made in respect of a person, the person
may apply for a termination order not earlier than 20 years after the most recent order was made under s. 490.012
or under that section and s. 227.01 of the National Defence Act, or on or after the day on which they receive a
pardon. The application must be in relation to every order that is in effect. 6
Person subject to obligation. If an applicant is also subject to an obligation to comply with the Sex Offender
Information Registration Act under s. 490.019, 490.02901, under s. 227.06 of the National Defence Act or under s.
36.1 of the International Transfer of Offenders Act, the application must be in relation to that obligation as well as to
every order that is in effect.7
Re-application. A person whose application for a termination order is refused may re-apply not earlier than five
years after the previous application was made or once he or she receives a pardon or once a record suspension
has been ordered. However, if an order is made under s. 490.012 or 227.01 of the National Defence Act, after the
previous application was made the person cannot re-apply under this subsection. 8
Court to which application is made. If the order to which the termination application relates was made by a
superior court of criminal jurisdiction, then the termination application must be made to such a court. In addition, if
one or more of the orders were made under s. 227.01 of the National Defence Act and the Chief Military Judge
Page 151 of 170
HC2-460 Termination of order to comply with registration requirements.
does not have jurisdiction to receive the application under subs. 227.03(6) of that Act, the superior court of criminal
jurisdiction will hear the application to terminate the order. In any other case, the application is to be made to a court
of criminal jurisdiction.9
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.015(1)(a).
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.015(1)(b).

End of Document
HC2-461 When termination order granted.
HC2-461
HC2-461 When termination order granted. A termination order will be made if the court is satisfied that the
applicant has established that the impact on the applicant of continuing the order, including the impact on his or her
privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective
prevention or investigation of crimes of a sexual nature via the registration of information relating to sex offenders
under the Sex Offender Information Registration Act.1
Reasons for decision. The court shall give reasons for its decision.2
Notice of termination. If the court makes a termination order, it shall cause the Commissioner of the Royal
Canadian Mounted Police and the Attorney General of the province, or the minister of justice of the territory, to be
notified of the decision.3
Footnote(s)
1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.016(1); (CAN) Sex Offender Information Registration Act, S.C.
2004, c. 10.
End of Document
HC2-462 Appeal and notice requirements.
HC2-462
HC2-462 Appeal and notice requirements. The prosecutor or the person who applied for a termination order
may appeal from a decision granting or refusing such an order on any ground of appeal that raises a question of
law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing, quash
the termination order or make an order that may be made under that subsection. 1 If the appeal court makes an
order that may be made under subs. 490.016(1), it shall cause the Commissioner of the Royal Canadian Mounted
Police and the Attorney General of the province, or the minister of justice of the territory, in which the application for
the order was made to be notified of the decision. 2
Footnote(s)
End of Document
HC2-463 Obligation upon service of notice.
HC2-463
OTHER POST-CONVICTION ORDERS > 1. Sex Offender Information > (3) Obligation to Comply
with Registration Requirements > (a) Notice
(3) Obligation to Comply with Registration Requirements
(a) Notice
HC2-463 Obligation upon service of notice. A person who is served with a notice in Form 53 shall comply with
the Sex Offender Information Registration Act 1 for the applicable period specified unless a court makes an
appropriate exemption order.2
Persons who may be served. The Attorney General of a province or minister of justice of a territory must serve a
person with a notice in Form 53 requiring them to comply with the Sex Offender Information Registration Act only if
the person was convicted of, or found not criminally responsible on account of mental disorder for, an offence
referred to in paras. 490.011(1)(a), (c), (c.1), (d) or (e) of the definition “designated offence” and
1. On the day on which the Sex Offender Information Registration Act comes into force, they are subject to a
sentence for, or have not received an absolute discharge under Part XX.1 from, the offence; or
2. In any other case, their name appears in connection with the offence, immediately before the Sex Offender
Information Registration Act comes into force, in the sex offender registry established under the Ontario
Act, and they either were a resident of Ontario at any time between April 23, 2001 and the day on which
the Sex Offender Information Registration Act comes into force or committed the offence in Ontario. 3
Person subject to a sentence. A person who is subject to a lifetime firearms prohibition imposed pursuant to s.
109 of the Criminal Code is by reason only of the extant firearms prohibition, “subject to a sentence” within the
meaning of s. 490.02(1)(a) of the Criminal Code and thus liable to the retrospective application of the Sex Offender
Information Registration Act.4
Exception. A notice to comply shall not be served upon a person described above if they have been finally
acquitted of, or have received a free pardon granted under Her Majesty's royal prerogative of mercy or s. 748 for,
every offence in connection with which notice may be served on them. A notice shall also not be served upon a
person described above if an application has been made for an order under subs. 490.021 under the Code or s.
227.08 of the National Defence Act in relation to any offence in connection with which notice may be served on
them pursuant to the above.5
Proof of pardon in Ontario. A person whose name appears, immediately before the Sex Offender Information
Page 155 of 170
HC2-463 Obligation upon service of notice.
Registration Act comes into force, in the sex offender registry established under the Ontario Act shall not be served
with a notice to comply if they have provided proof of a pardon in accordance with subs. 9(1) of the Ontario Act. 6
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.019; the period for which the person must comply is specified
under s. 490.022; the exemption order referred to is one made under s. 490.023(2).
4 T. (R.A.) v. British Columbia (Attorney General), [2011] B.C.J. No. 1035, 277 C.C.C. (3d) 334 (B.C.C.A.).
5 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.02(2)(a), (b).
End of Document
HC2-464 Period and service of notice.
HC2-464
with Registration Requirements > (a) Notice
(a) Notice
HC2-464 Period and service of notice. The notice in Form 53 shall be personally served within one year after
the day on which the Sex Offender Information Registration Act comes into force.1
Exception. Notice may be served by registered mail at the person's last known address instead of personally
where:
1. The person is a person referred to in para. 490.02(1)(a) who is unlawfully at large or is in breach of any
terms of his or her sentence or discharge, conditions set under this Act, that relate to residence or in
breach of Part III of the National Defence Act,2 or
2. The person is a person referred to in para. 490.02(1)(b) who is not in compliance with s. 3 of the Ontario
Act on the day on which the Sex Offender Information Registration Act comes into force.3
Further exception. If a person referred to in para. 490.02(1)(b) is in compliance with the specified provisions of the
Ontario Act on the day on which the Sex Offender Information Registration Act comes into force but fails to comply
with the proper subsections of that act within one year after that day, the notice shall be served within one year after
the day on which they failed to comply and may be served by registered mail at their last known address. 4
Proof of service. To show evidence of the service and the notice, an affidavit of the person who served the notice
must set out that:
33. The person who served the notice has charge of the appropriate records and has knowledge of the facts in
the particular case;
34. The notice was personally served on, or mailed to, the person to whom it was directed on a named day;
and
35. The person who served the notice identifies a true copy of the notice as an exhibit attached to the affidavit.
Such an affidavit must also be sworn before a commissioner or other person authorized to take affidavits. 5
Page 157 of 170
HC2-464 Period and service of notice.
Further requirements. The person who served the notice shall then immediately send a copy of the affidavit and
the notice to the Attorney General of the province, or the minister of justice of the territory, in which the person was
served.6
Footnote(s)
2004, c. 10.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.021(2); see the section above regarding “obligation to comply”.
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.021(3); see the section above regarding “obligation to comply”.
4 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.021(4); the specified provisions of the Ontario Act with which the
person must be in compliance are s. 3 and subs. 7(2), and the person must comply with subs. 3(1) and 7(2) of that act
within one year or else this exception will apply.
End of Document
HC2-465 Date obligation begins.
HC2-465
with Registration Requirements > (b) Time Requirements
(b) Time Requirements
HC2-465 Date obligation begins. An obligation to comply with the Sex Offender Information Registration Act 1
begins either:
1. One year after the day on which a person is served with a notice in Form 53 or when a court decides not to
make an exemption order in respect of the obligation, whichever is later; or
2. When an exemption order made under the Code is quashed. 2
Date obligation ends. The obligation ends on the earliest of: 3
36. The day on which an exemption order is made on an appeal from a decision not to make such an order;
37. The day on which the obligation of a person referred to in para. 490.02(1)(b) to comply with s. 3 of the
Ontario Act ends under para. 7(1)(a) of that Act; or
38. The day on which a person referred to in para. 490.02(1)(b) provides satisfactory proof of a pardon or
record suspension to a person who collects information, as defined in subs. 3(1) of the Sex Offender
Information Registration Act, at a registration centre.
Duration of obligation. If none of the dates described above occurs first, then the duration of the obligation will
depend upon the offence to which the obligation relates, with a total duration of between 10 years to life. The period
of duration begins on the day on which the person was sentenced, or found not criminally responsible on account of
mental disorder and ends:
24• After 10 years for an offence that was prosecuted summarily or for which the maximum term of
imprisonment is two or five years; or
25• After 20 years for an offence for which the maximum term of imprisonment is 10 or 14 years.
Page 159 of 170
HC2-465 Date obligation begins.
However, the obligation will apply for life if:
• The maximum term of imprisonment for an offence to which the obligation relates is life; or
• The person was convicted of, or found not criminally responsible on account of mental disorder for, more
than one offence referred to in s. 490.011(1)(a), (c), (c.1), (d) or (e) of the definition “designated offence” or
in para. (a) or (c) of the definition “designated offence” in s. 227 of the National Defence Act and if more
than one of those offences is listed in the notice. 4
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.022(1); this provision applies with respect to an obligation under s.
490.019, and a decision not to make an exemption order in respect of the obligation may be made under s. 490.023(2).
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.022(2); an exemption order may be made under subs. 490.023(2).
End of Document
HC2-466 Exemption from obligation.
HC2-466
with Registration Requirements > (c) Exemption Order
(c) Exemption Order
HC2-466 Exemption from obligation. Within one year after the day on which a person is served with a notice in
Form 53 informing them of their obligation to comply with the Sex Offender Information Registration Act,1 a person
may apply to any court of criminal jurisdiction for an order exempting them from the obligation. 2
Jurisdiction. The exemption application must be made to a court of criminal jurisdiction if it relates to an obligation
under s. 490.019 of this Act; or it relates to an obligation under s. 227.06 of the National Defence Act and the Chief
Military Judge does not have jurisdiction to receive the application under subs. 227.1(2) of that Act. 3
Exemption order. The court shall make an exemption order if it is satisfied that the person has established that
the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the
public interest in protecting society through the effective investigation of crimes of a sexual nature via the
registration of information relating to sex offenders under the Sex Offender Information Registration Act.4 The court
shall give reasons for a decision made under this section. 5
Effect of order. If the court makes an exemption order, it shall also make an order requiring the permanent
removal from the database of all information that relates to the person. 6
Examples. An exemption from the registration requirements of the Sex Offender Information Registration Act
pursuant to the above provisions was granted where the accused has no prior criminal history, his offences were
crimes of opportunity and do not suggest a pattern of sexual misconduct, and he presents little or no risk for re-
offending. “The accused is among the low risk or no risk offenders who would dilute the resources of the police if
included in the register.”7 An exemption from registration was refused and registration ordered in a possession of
child pornography case after detailed review of principles and precedents where “there is nothing unique nor
exceptional about this Defendant to mandate an exemption”. 8
Variations. While s. 490.023(1) of the Criminal Code permits an offender to apply to the judge to be exempted
from the reporting obligations under the Sex Offender Information Registration Act, under s. 490.023 a judge does
not have jurisdiction to alter the duration of an offender's reporting obligation. 9
Page 161 of 170
HC2-466 Exemption from obligation.
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.023(1); note that only a person who is not subject to an order under
s. 490.012 or s. 227.01 of the National Defence Act may make an application under this section. Section 490.023 does
not permit a judge to reduce the duration of a sex offender's reporting obligation: R. v. R. (M.J.), [2007] N.S.J. No. 305,
224 C.C.C. (3d) 80 (N.S.C.A.).
3 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.023(1.1).
7 R. v. N. (A.G.), [2005] B.C.J. No. 2781 at para. 26, 2005 BCPC 582 (B.C. Prov. Ct.). See also R. v. Boyd, [2007]
N.B.J. No. 86, 2007 NBPC 10 (N.B. Prov. Ct.); R. v. V. (J.P.), [2007] B.C.J. No. 702, 2007 BCPC 82 (B.C. Prov. Ct.);
R. v. Mebrate, [2007] N.S.J. No. 171, 2007 NSPC 171 (N.S. Prov. Ct.); R. v. S. (M.W.), [2007] B.C.J. No. 2011, 2007
BCSC 1188 (B.C.S.C.); R. v. C. (C.), [2007] A.J. No. 1383, 234 C.C.C. (3d) 389 (Alta. Prov. Ct.); R. v. Lajoie, [2007]
A.J. No. 1418, 2007 ABPC 329 (Alta. Prov. Ct.).
8 R. v. K. (G.H.), [2005] B.C.J. No. 2874, 2005 BCPC 618 (B.C. Prov. Ct.), supp. reasons [2004] B.C.J. No. 2875,
2004 BCPC 540 (B.C. Prov. Ct.).
9 R. v. R. (M.J.), [2007] N.S.J. No. 305, 224 C.C.C. (3d) 80 (N.S.C.A.).
End of Document
HC2-467 Appeal from exemption order.
HC2-467
(c) Exemption Order
HC2-467 Appeal from exemption order. The Attorney General or the person who applied for an exemption order
may appeal from a decision of the court refusing or granting such an order on any ground of appeal that raises a
question of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new
hearing, quash the exemption order or make an order that may be made under that subsection. 1
Effect of exemption order. If an appeal court makes an exemption order, it shall also make an order requiring the
permanent removal from the
database of all information that relates to the person. 2
Footnote(s)
End of Document
HC2-468
(c) Exemption Order
HC2-468 Notice requirements. When a court decides not to make an exemption order or an appeal court
dismisses an appeal from such a decision or quashes an exemption order, it shall notify the Commissioner of the
Royal Canadian Mounted Police or Attorney General of the province or minister of justice of the territory in which
the order was made of the decision and cause the person who applied for the exemption order to be informed of the
specified sections of the Sex Offender Information Registration Act,1 the Criminal Code offences under ss. 490.031
and s. 119.1 of the National Defence Act.2
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.025; the person who applied for the exemption order shall be
informed of ss. 4-7.1 of the Sex Offender Information Registration Act.
End of Document
HC2-469 Application for termination of obligation.
HC2-469
with Registration Requirements > (d) Termination Order
(d) Termination Order
HC2-469 Application for termination of obligation. A person who is subject to an obligation to comply with the
Sex Offender Information Registration Act 1 under s. 490.019, and is not subject to an order s. 490.02901, under s.
227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act — or an
order under s. 490.012 or under s. 227.01 of the National Defence Act — that began later, may apply for a
termination order in respect of the obligation.2 The period before which an application for a termination order may
be made begins to run on the day on which the person was sentenced, or found not criminally responsible on
account of mental disorder, and depends upon the offence to which the obligation relates. That period is five years
if the offence was prosecuted summarily or is an offence for which the maximum term of imprisonment is two or five
years, 10 years if the offence is one for which the maximum term of imprisonment is 10 or 14 years, and 20 years if
the offence is one for which the maximum term of imprisonment is life. 3 If the person was sentenced to more than
one offence, they may apply for a termination order if 20 years has elapsed since they were sentenced, or found not
criminally responsible, for the most recent offence.4
Pardon or record suspension. A person may apply for a termination order once they receive a pardon or record
suspension.5
Re-application if order not terminated. A person whose application is refused may apply again five years later or
if they subsequently receive a pardon or record suspension. However, they may not apply again if, after they made
the application, they become subject to an obligation under s. 490.02901, under s. 227.06 of the National Defence
Act, s. 36.1 of the International Transfer of Offenders Act or an order under s. 490.012 or s. 227.01 of the National
Defence Act.6
Jurisdiction. The application must be made to a court of criminal jurisdiction if it relates to an obligation under s.
490.019 or it relates to an obligation under s. 227.06 of the National Defence Act and the Chief Military Judge does
not have jurisdiction to receive the application under subs. 227.12(6) of that Act. 7
Page 165 of 170
HC2-469 Application for termination of obligation.
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
End of Document
HC2-470 When termination order granted.
HC2-470
HC2-470 When termination order granted. A termination order will be made if the court is satisfied that the
applicant has established that the impact of continuing the obligation, including the impact on his or her privacy or
liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention
and investigation of crimes of a sexual nature via the registration of information relating to sex offenders under the
Sex Offender Information Registration Act.1
Reasons for decision. The court shall give reasons for its decision.2
Notice that order has been terminated. Notice that the termination order has been granted must be given by the
court to the Commissioner of the Royal Canadian Mounted Police and the Attorney General of the province, or the
minister of justice of the territory.3
Footnote(s)
2004, c. 10.
End of Document
HC2-471 Deemed application.
HC2-471
HC2- 471 Deemed application. If a person is eligible to apply for both an exemption order and a termination
order in respect of the obligation to comply with the Sex Offender Information Registration Act 1 within one year
after they are served with the notice of the obligation, an application within that period for one order is deemed to be
an application for both.2
Footnote(s)
1 (CAN) S.C. 2004, c. 10.
2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 490.028; this provision refers to an exemption order under s. 490.023
and a termination order under s. 490.026.
End of Document
HC2-472 Appeal from termination order.
HC2-472
HC2-472 Appeal from termination order. The Attorney General or the person who applied for a termination
order may appeal from a decision granting or refusing such an order on any ground of appeal that raises a question
of law or of mixed law and fact. The appeal court may dismiss the appeal, or allow it and order a new hearing,
quash the termination order or make an order that may be made under that subsection. 1 If the appeal court makes
an order, it must provide notice to the Commissioner of the Royal Canadian Mounted Police and the Attorney
General of the province, or the minister of justice of the territory, in which the application for the order was made. 2
Footnote(s)
End of Document
HC2-473 Persons convicted for offence equivalent to designnated offences
must register.
HC2-473
OTHER POST-CONVICTION ORDERS > 1. Sex Offender Information > (4) Compliance if Person
Convicted Outside of Canada
(4) Compliance if Person Convicted Outside of Canada
HC2-473 Persons convicted for offence equivalent to designnated offences must register. The requirements
and procedures with respect to persons who are required to comply with the Sex Offender Information Registration
Act are repeated with regard to persons who were convicted for offences while outside of Canada. Such persons
also have an obligation to comply with the Act if they are served with the requisite notice of compliance under From
54.1 This applies only to persons who arrived in Canada after 2010 (when these compliance requirements came
into force) who were convicted of or found not criminally responsible on account of mental disorder for an offence
outside Canada, other than a service offence as defined in s. 2(1) of the National Defence Act. The relevant offence
must be equivalent to a designated offence specified under s. 490.011(1). 2 Service must be personal and the
person who served the notice must swear an affidavit, which then constitutes proof of service. 3 The obligation to
comply with the Sex Offender Information Registration Act begins when the person is served with the notice and will
end on the day an exemption order is made. If the person does not obtain an exemption the order will be for either
10 or 20 years or for life if the maximum term of imprisonment for the relevant offence in Canada would have been
two or five years, 10 or 14 years or life respectively. 4
Obligation to advise of conviction outside of Canada. Any person who is convicted of or found not criminally
responsible for a “designated offence” outside of Canada is required to advise a police service within seven days
after the day on which they arrive in Canada of that fact and of their name, date of birth, gender and address, and,
after one year, any change in their address thereafter. The police service is required to cause the Attorney General
of the province, or the minister of justice of the territory, in which it is located to be provided with the information. 5
Footnote(s)

Page 170 of 170
HC2-473 Persons convicted for offence equivalent to designnated offences must register.
End of Document

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Cumulative Supplement

Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue)

Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue) (Gold)

XIII. EXTRAORDINARY REMEDIES

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 774.

XIII. EXTRAORDINARY REMEDIES

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 779(1).

2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 779(2).

XIII. EXTRAORDINARY REMEDIES

Nature of section. The above provision has been judicially considered.2

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 775.

XIII. EXTRAORDINARY REMEDIES

1 R. v. Russell, [2001] S.C.J. No. 53, [2001] 2 S.C.R. 804 (S.C.C.).

2 R. v. Russell, [2001] S.C.J. No. 53, [2001] 2 S.C.R. 804 (S.C.C.).

5 R. v. Jobin, [1995] S.C.J. No. 31, [1995] 2 S.C.R. 78 (S.C.C.).

7 R. v. Russell, [2001] S.C.J. No. 53, [2001] 2 S.C.R. 804 (S.C.C.).

XIII. EXTRAORDINARY REMEDIES

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 777(1).

2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 777(2).

4 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 777(3).

5 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 777(4).

6 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 778.

XIII. EXTRAORDINARY REMEDIES

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 776.

XIII. EXTRAORDINARY REMEDIES

3 R. v. Pearson, [1992] S.C.J. No. 99, 77 C.C.C. (3d) 124 (S.C.C.).

7 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 774.1.

XIII. EXTRAORDINARY REMEDIES

(2) Nunavut Proceedings

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 573.2(1).

2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 573.2(2).

XIII. EXTRAORDINARY REMEDIES

XIII. EXTRAORDINARY REMEDIES

5. Quashing Conviction, Order, Proceeding or Warrant

Scope of section. This section has been judicially considered.2

XIII. EXTRAORDINARY REMEDIES

5. Quashing Conviction, Order, Proceeding or Warrant

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 783.

XIII. EXTRAORDINARY REMEDIES

5. Quashing Conviction, Order, Proceeding or Warrant

1. A proclamation or order of the Governor in Council or the Lieutenant Governor in Council;

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 781(1).

2 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 781(2).

XIII. EXTRAORDINARY REMEDIES

5. Quashing Conviction, Order, Proceeding or Warrant

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 782.

XIII. EXTRAORDINARY REMEDIES

1 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 784(1).

5 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 784(3).

6 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 784(4).

7 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 784(5).

9 (CAN) Criminal Code, R.S.C. 1985, c. C-46, s. 784(6).

Halsbury's Laws of Canada - Criminal Procedure (2016 Reissue) (Gold)

SELECTED SECONDARY SOURCES

Criminal Procedure, 3rd Edition, Steve Coughlan (Irwin Law, 2016).

Martin's Ontario Criminal Practice, 2017 Edition, Marie Henein,

Watt's Manual of Criminal Evidence 2016, The Honourable Mr. Justice

Criminal Jury Charge Practice, Faisal Mirza (LexisNexis Canada, 2015).

The Practitioner's Ontario Criminal Practice, 2016 Edition + E-Book,

“Reasonableness as Proportionality: Towards A Better Constructive Interpretation of the Law on Searching

XII. APPEALS AND MISCARRIAGES OF JUSTICE

1. Appeals of Indictable Offences