Type of document: Prosecution Directive
Effective date: November 14, 2017

The Criminal Code creates the rights of appeal to all levels of court, for both an accused and the Attorney General. Anyone convicted of an offence may appeal conviction and/or sentence. The Criminal Code also provides the Attorney General with a right to appeal acquittals, orders for stays, and sentences in certain circumstances.

The appeal process in each level of court is governed by rules created for that specific court. Appeals from summary conviction matters are first heard in the Superior Court of Justice. In some cases, there is a further right of appeal, from the Superior Court to the Court of Appeal of Ontario. Appeals from indictable matters are heard in the Court of Appeal of Ontario. In limited circumstances, a decision of the Court of Appeal may be appealed to the Supreme Court of Canada.

When a case is being appealed, the appellate Prosecutor must notify the Prosecutor who conducted the trial (or who conducted the summary conviction appeal) of significant steps in the appeal proceedings before the case is heard in court. The appellate Prosecutor also must ensure that efforts are made to advise the victim of significant steps in the appeal proceedings before the case is heard in court. Reference should be made to the Victims Directive.

Crown appeals

The Criminal Code provides the Attorney General with a right to appeal in some circumstances, and sets out the legal criteria that shall be met. No Crown appeal may be approved unless it is in the public interest to fix the error and the legal basis for an appeal has been satisfied:

  • in the case of indictable appeals to the Ontario Court of Appeal and the Supreme Court of Canada, the proposed appeal must involve an error of law alone
  • in the case of summary conviction appeals, the proposed appeal can be based on a question of fact, or mixed fact and law, or an error of law alone
  • the verdict would not necessarily have been the same if the error had not been made or
  • in the case of a sentence appeal, the sentence that was imposed was demonstrably unfit, illegal or the result of an error in principle.

Prudence, restraint and a careful attention to the public interest are important principles that guide the Attorney General in reaching a decision whether or not to launch any appeal. Not every unfavourable ruling, judgment or sentence can or should be appealed. Even if the strict legal criteria for an appeal is met, a Crown appeal will not be commenced unless a thorough and considered review of the circumstances of the case, the state of the law, and the public interest has been conducted. The following factors inform such determinations:

  1. the safety and security of the public, having particular regard to the seriousness of the offence and the future dangers posed by the offender
  2. the importance of the legal issue raised
  3. the current state of the law on the issue being raised
  4. the importance of the factual issue(s), if raised on a summary conviction appeal, having regard for the impact of the finding in the particular jurisdiction
  5. the effect of the legal error on public confidence in the criminal justice system if it is left to stand
  6. deference to the jury’s verdict and the recognition that it will not be lightly set aside by an appellate court
  7. whether the trial record provides a suitable basis upon which to raise the issues on appeal
  8. the strength of the Crown’s case and whether it may have deteriorated by the time a new trial is ordered or whether the Crown intends to proceed with a new trial. Generally, it will not be in the public interest to appeal an acquittal where there is no expectation that the Crown will proceed with a new trial
  9. whether there is a reasonable prospect that the appeal will be successful.

Obtaining approval for crown appeals

As a general rule, summary conviction appeals are dealt with by the Crown Attorney’s office in the jurisdiction where the trial took place. The Prosecutor who conducted the trial must obtain approval for an appeal to the Superior Court of Justice from her Crown Attorney or designate. In the case of trials of summary conviction matters that were prosecuted by counsel from the Crown Law Office – Criminal, approval for a summary conviction appeal to the Superior Court of Justice must be obtained from the Director or designate.

All requests for a Crown appeal to the Court of Appeal for Ontario must, absent exceptional circumstances have the approval of either the Crown Attorney or the Director for the jurisdiction where the trial took place, or their designate. The request must be made in writing to the Director of Crown Law Office – Criminal who will decide whether the proposed appeal should be launched.

Following an unsuccessful Crown appeal or a successful defence appeal, the Attorney General may seek a further appeal to the Supreme Court of Canada. The appellate Prosecutor who conducted the appeal in the Court of Appeal for Ontario must obtain the approval for an appeal to the Supreme Court of Canada from the Director of Crown Law Office - Criminal.

Timelines

Strict time lines that are set out in the rules govern all appeals. There are some differences in the timelines depending on the nature of the appeal, who is the appellant and the court to which the appeal is being filed. In limited circumstances, the Court may extend these timelines.

For Crown appeals to the Superior Court of Justice and the Court of Appeal for Ontario, from an acquittal, an order staying the trial, or a sentence, the appellate Prosecutor shall serve the notice of appeal within 30 days of the date of the decision being appealed.

All notices of appeal of a mental disorder disposition shall be served within 15 days of the date of receipt of the reasons for the disposition.

Publication bans

The appellate Prosecutor must ensure compliance with any publication bans imposed, whether by statute or otherwise, by court order.

Responding to defence appeals

The Criminal Code provides a broad right of appeal to an accused from conviction and sentence. Defence appeals can be brought with or without a lawyer. Each jurisdiction, or level of court, may have specific procedures and rules that govern appeals brought by unrepresented appellants who are in custody.

Judicial interim release pending an appeal

An appellant who has been sentenced to a period of custody may apply to be released from custody pending appeal, in accordance with the relevant legislation.

The appellate Prosecutor must ensure that efforts are made to notify the Prosecutor who conducted the trial (or the summary conviction appeal), when the appellate Prosecutor is notified of an application for judicial interim release pending appeal.

The appellate Prosecutor also must ensure that efforts are made to advise the victim when an application for judicial interim release pending appeal has been made and advised of the outcome of the hearing. The appellate Prosecutor should consider the directions set out in the Victims Directive.

Conceding appeals

The appellate Prosecutor may concede an appeal only where no reasonable argument can be made to sustain the verdict and/or sentence, after a comprehensive and rigorous analysis of the strengths and weaknesses of the case. In addition, the appellate Prosecutor must be satisfied that fairness and the interests of justice are best served by a concession. Although the Court will give the concession considerable weight, it is not bound to accept a concession.

In all cases, before conceding a defence appeal, the appellate Prosecutor must, absent exceptional circumstances, consult with the Prosecutor who had carriage of the trial or the summary conviction appeal.

In the case of a summary conviction appeal, the appellate Prosecutor must obtain the approval for the concession from the Director, or where delegated the Crown Attorney or the Supervisor of the Summary Conviction Appeals Office. For an indictable appeal, the appellate Prosecutor must obtain the approval for the concession from the Director of Crown Law Office - Criminal.

This requirement for approval to concede an appeal applies equally where the appellate Prosecutor concludes that there was a Charter violation and there is no reasonable argument that can be made against the granting of a Charter remedy.

Concessions of unconstitutionality

Striking down a piece of legislation (provincial or federal) or common law rule as unconstitutional has broad implications for the administration of justice. Only in rare circumstances will it be appropriate for the Prosecutor to concede that a statutory provision or common law rule is inconsistent with the Constitution and cannot be saved as a reasonable limit under the Charter.

In all cases whether trial or appeal, a Prosecutor must obtain the approval of the Deputy Attorney General before conceding that a statute or common law rule is unconstitutional, regardless of whether reliance will be made on section 1 of the Charter.