Appeals and bail pending appeal Flashcards
What is an appeal?
A review of trial proceedings by an appellate court to see that they were carried out according to law
Appellate courts are creatures of
statute
Appeals from summary conviction cases are dealt with in which part of the Criminal Code?
part XXVII
Are paralegals permitted to represent an accused person on appeals?
No
What are the two routes of appeal possible for a summary conviction?
Appeals launched per section 813 of the Criminal Code and appeals launched per section 830 of the Criminal Code
Pursuant to section 813(a), an accused person may appeal a
conviction, order or sentence. This is a broad right of appeal, with no leave requirements or other restrictions
Pursuant to section 813(b), the Crown may appeal
the dismissal of an information, a stay of proceedings, or a sentence
Per R v Labadie, an appeal of a summary conviction matter by the Crown may be based on
grounds of fact, mixed fact and law, or law alone
Pursuant to section 830, the accused and Crown can only appeal in three narrow circumstances:
- a question of law alone
- an excess of jurisdiction
- a refusal or failure to exercise jurisdiction on the part of a trial judge
By filing an appeal under section 830, an appellant is deemed to have
abandoned their right to an appeal under section 813
What must be filed to launch a summary conviction appeal?
a notice of appeal in Form 2 of the SCJ Rules
What are the time frames for launching an appeal, per rule 40.05?
- 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
What other documents must be filed with the notice of appeal?
- ## court reporter’s certificate or written confirmation that the trancript has been ordered (written conf. must be followed by cert. filed in 30 days)
When might an appellant file without ordering the transcript?
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
when must the appeal book be served?
-within 15 days after the completion of the transcript, or where a transcript is not required,
- within 30 days of filing the NOA
The factum in a sentence only appeal is FORM
19
What is the page limit for the appellant’s factum?
No longer than 20 pages
What is the page limit for the respondent’s factum?
No longer than 15 pages
The appellant’s factum must be served and filed within
90 days of receiving the court reporters cert of completion
The respondent’s factum must be served on the appellant and filed with the court
no later than 10 days before the week in which the appeal is scheduled to be heard
When is the appeal perfected?
When the transcript, appeal book and appellant’s factum have been filed
Who hears an appeal of a summary conviction?
a single judge of the Superior Court of Justice
in order to be admissible, fresh evidence as available under a s.813 appeal must meet 4 requirements
- 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
what element of fresh evidence is applied more strictly on the Crown?
the requirement of due diligence
The Superior Court of Justice may allow an appeal on the following grounds (per section 686 CC):
- the verdict was unreasonable/ unsupported by the evidence
- there is an error on a question of law
- there has been a miscarriage of justice
In allowing an appeal, the appellate court can
enter an acquittal or order a new trial
the court has the power to dismiss an appeal where there was a wrong decision on a question of law, provided
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
in an appeal from an acquittal, the onus is on
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
in a sentence appeal, the sole consideration is
the fitness of the sentence
In an appeal pursuant to section 830, the appeal court may:
- affirm, reverse or modify the trial decision
- remit the matter back to the trial court with the opinion of the summary conviction appeal court
Pursuant to section 683(5) a judge of an appellate court has the power to stay the following pending appeal:
- 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
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:
- 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
when making an application for bail pending appeal, the appellant must establish that
- 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
Where the appeal is sentence only and the appellant applies for bail pending appeal, the appellant must establish
the appeal has sufficient merit and that in the circumstances it would cause unecessary hardship if the appellant were detained in custody
The requirements of an application for bail pending appeal consists of
- 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
