Canadian Criminal Procedure and Practice/Appeals/Summary Offences

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

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

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

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

Section 830 sets out as follows:

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

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

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

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

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

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

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

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

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

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

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

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

A summary conviction appeal judge cannot interfere with a trial judge's findings unless they were unreasonable or unsupported by evidence.

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

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

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

An appellant must have leave to appeal a summary conviction appeal decision. The appellant must establish the requirements of s. 839 of the Criminal Code:
 * 1) the issue sought to be raised is a question of law alone;
 * 2) the issue is important/the matter raises an arguable case of substance; and
 * 3) the case must of sufficient importance to merit the attention of the court. There is a compelling reason for a second level of court to review. Reasons include raising matters that are significant to the administration of justice or development of law.

In considering the latter questions, the main consideration is "interests of justice".

Leave under s. 839(1)(a) should be granted sparingly. The main factors to consider are whether there "are the significance of the legal issues raised to the general administration of criminal justice" and "the merits of the proposed grounds of appeal"

Leave should be denied, even if there is an error, where there is no potential to significantly impact the law. However, leave should be warranted for areas of law that are not settled.