Canadian Criminal Procedure and Practice/Appeals/Indictable Offences

Indictable Offence Appeals
At common law, there is no method of appealing convictions or acquittals for indictable offences. The right to appeal an indictable offence to the provincial Court of Appeal is derived from the Criminal Code in Part XXI.

There are still the related common law remedies of Habeas Corpus, Canadian Criminal Procedure and Practice/Pre-Trial Matters/Mandamus and Certiorari|Mandamus and Certiorari]]. However the common law writ of error and writ of error coram nobis was removed by the Criminal Code in 1892.

The statutory right of appeal exists for the accused on questions of fact and mixed fact/law. The crown's statutory right to appeal exists on questions of law alone. Appeals on sentence by either Crown or Accused is considered a separate basis of appeal.

See also: R. v. Robinson, 1989 ABCA 267 (CanLII)

Where there is no right to appeal granted by statute, the party seeking appeal must apply and be granted leave for appeal before the court can assess the merits of the appeal issues.

Crown Appeal
The crown may appeal on indictable matters for the situations set out in section 676:

This section provides the crown a right of appeal to an acquittal or NCR verdict on a question of law alone (676(1)(a)), a court order to quash an indictment (676(1)(b), 676(1)(c)), a order for a stay of proceedings (676(1)(c)).

The crown has a right of appeal acquittal only on a question of law. Thus, acquittals based on matters of credibility cannot be appealed.

The Crown has a "heavy onus" to overturn an acquittal, particularly on jury verdicts. They are not lightly overturned.

Even where there is a question of law alone, the Crown must still establish a connection between the error in law and the acquittal. The error must be "directly and concretely" related to the acquittal.

The Courts must "avoid seizing on perceived deficiencies in a trial judge's reasons for acquittal to create a ground of unreasonable acquittal."

Cases of "unreasonable verdict" or "miscarriage of justice" have little relevance to crown appeals under s.676(1)(a) for error of law.

Defence Appeal
An accused person may appeal a conviction for an indictable matters for the situations set out in s. 675

Thus, an accused person may appeal a conviction as of right on a question of law or a decision concerning a prerogative writ (e.g. mandamus, certiorari , or prohibition). The accused needs leave before applying on a question of fact or mixed fact and law. An accused also requires leave to appeal a sentence, unless the sentence includes parole ineligibility of greater than 10 years for second degree murder in which case leave is not required.

Where the leave application is denied on any matter except sentence, the accused may apply by filing within 7 days a notice of application for leave to have the appeal heard.