Appeals and bail pending appeal

Question 1

What is an appeal?

Answer 1

A review of trial proceedings by an appellate court to see that they were carried out according to law

Question 2

Appellate courts are creatures of

Answer 2

statute

Question 3

Appeals from summary conviction cases are dealt with in which part of the Criminal Code?

Answer 3

part XXVII

Question 4

Are paralegals permitted to represent an accused person on appeals?

Answer 4

No

Question 5

What are the two routes of appeal possible for a summary conviction?

Answer 5

Appeals launched per section 813 of the Criminal Code and appeals launched per section 830 of the Criminal Code

Question 6

Pursuant to section 813(a), an accused person may appeal a

Answer 6

conviction, order or sentence. This is a broad right of appeal, with no leave requirements or other restrictions

Question 7

Pursuant to section 813(b), the Crown may appeal

Answer 7

the dismissal of an information, a stay of proceedings, or a sentence

Question 8

Per R v Labadie, an appeal of a summary conviction matter by the Crown may be based on

Answer 8

grounds of fact, mixed fact and law, or law alone

Question 9

Pursuant to section 830, the accused and Crown can only appeal in three narrow circumstances:

Answer 9

• a question of law alone
• an excess of jurisdiction
• a refusal or failure to exercise jurisdiction on the part of a trial judge

Question 10

By filing an appeal under section 830, an appellant is deemed to have

Answer 10

abandoned their right to an appeal under section 813

Question 11

What must be filed to launch a summary conviction appeal?

Answer 11

a notice of appeal in Form 2 of the SCJ Rules

Question 12

What are the time frames for launching an appeal, per rule 40.05?

Answer 12

• an appellant must serve and file the notice of appeal within 30 days after the day on which the sentence was IMPOSED
• If accused is appealing, must serve a noa by filing a copy with the clerk of the court of appeal with proof of service on the Office of the AG designated for service in the region
• if Crown appealing, pre-Covid had to serve personally, but now email service will suffice

Question 13

What other documents must be filed with the notice of appeal?

Answer 13

• ## court reporter’s certificate or written confirmation that the trancript has been ordered (written conf. must be followed by cert. filed in 30 days)

Question 14

When might an appellant file without ordering the transcript?

Answer 14

When they have a pending legal aid application or have been granted a provisional legal aid cert. The court reporters cert must be filed within 15 days after a legal aid cert authorizing the funding of the appeal has began

Question 15

when must the appeal book be served?

Answer 15

-within 15 days after the completion of the transcript, or where a transcript is not required,

• within 30 days of filing the NOA

Question 16

The factum in a sentence only appeal is FORM

Answer 16

19

Question 17

What is the page limit for the appellant’s factum?

Answer 17

No longer than 20 pages

Question 18

What is the page limit for the respondent’s factum?

Answer 18

No longer than 15 pages

Question 19

The appellant’s factum must be served and filed within

Answer 19

90 days of receiving the court reporters cert of completion

Question 20

The respondent’s factum must be served on the appellant and filed with the court

Answer 20

no later than 10 days before the week in which the appeal is scheduled to be heard

Question 21

When is the appeal perfected?

Answer 21

When the transcript, appeal book and appellant’s factum have been filed

Question 22

Who hears an appeal of a summary conviction?

Answer 22

a single judge of the Superior Court of Justice

Question 23

in order to be admissible, fresh evidence as available under a s.813 appeal must meet 4 requirements

Answer 23

• the evidence could not have been produced at trial through the exercise of due diligence
• the evidence is relevant, bearing on a potentially decisive issue at trial
• the evidence is credible
• ## when considered with all other evidence, the fresh evidence could have reasonable been expected to have affected the verdict

Question 24

what element of fresh evidence is applied more strictly on the Crown?

Answer 24

the requirement of due diligence

Question 25

The Superior Court of Justice may allow an appeal on the following grounds (per section 686 CC):

Answer 25

• the verdict was unreasonable/ unsupported by the evidence
• there is an error on a question of law
• there has been a miscarriage of justice

Question 26

In allowing an appeal, the appellate court can

Answer 26

enter an acquittal or order a new trial

Question 27

the court has the power to dismiss an appeal where there was a wrong decision on a question of law, provided

Answer 27

it gave rise to no substantial wrong or miscarriage of justice. The court will consider:
- the seriousness of the error
- the effect it likely had on the trial judge’s reasoning and
- the probable guilt of the accused on the basis of the property admissible evidence

Question 28

in an appeal from an acquittal, the onus is on

Answer 28

the Crown to satisfy the appellate court that BUT FOR the error of law, fact, or mixed law and fact, the verdict would not necessarily have been the same

Question 29

in a sentence appeal, the sole consideration is

Answer 29

the fitness of the sentence

Question 30

In an appeal pursuant to section 830, the appeal court may:

Answer 30

• affirm, reverse or modify the trial decision
• remit the matter back to the trial court with the opinion of the summary conviction appeal court

Question 31

Pursuant to section 683(5) a judge of an appellate court has the power to stay the following pending appeal:

Answer 31

• an obligation to pay a fine
• an order for the forfeiture or disposition of forfeited property
• an order for restitution
• an obligation to pay a victim surcharge
• a probation order
• a conditional sentence order

Question 32

In seeking a stay in relation to a summary conviction appeal, the Crown must be served with the following materials 2 DAYS prior to the application:

Answer 32

• a notice of application for the stay
• a copy of the information
• a copy of the notice of appeal
• an affidavit from the accused
• any other supporting materials

Question 33

when making an application for bail pending appeal, the appellant must establish that

Answer 33

• the appeal is not frivolous
• the appellant will surrender themself into custody in accordance with the terms of the release order
• release would not be contrary to the public interest

Question 34

Where the appeal is sentence only and the appellant applies for bail pending appeal, the appellant must establish

Answer 34

the appeal has sufficient merit and that in the circumstances it would cause unecessary hardship if the appellant were detained in custody

Question 35

The requirements of an application for bail pending appeal consists of

Answer 35

• a copy of the notice of application
• a copy of the information
• a copy of the notice of appeal and any supplementary notices of appeal
• an affidavit of the appellant in compliance with rule 42.03
• any other material that may be of assistance to the court