An Introduction to Appellate Practice
Prepared For: Legal Education Society of Alberta
Criminal Law Boot Camp
Prepared By:
C.B. Davison
Abbey Hunter Davison
Edmonton, Alberta
For Presentation In:
Edmonton – May 7, 2010
Calgary – May 28, 2010
Introduction to Appellate Practice
I.
SUBSTANTIVE LAW
YOU LOST. SO WHAT??
One of the hardest things for a junior lawyer to understand – and one of the things it is almost impossible for a
layperson, including the accused, to understand and accept – is that mere disagreement with the trial judge’s
decision(s) or conclusion(s) is not a sufficient basis upon which to found an appeal.
A.
Appealable Decisions
The starting point is to determine whether the decision in question is even one which can be appealed. In
criminal law there are no interlocutory appeals: only final orders or adjudications may be challenged on appeal.
Rulings made during the course of the trial may be appealed, but only after the trial itself has been concluded
and as part of the challenge to the result. This includes alleged Charter violations.
An accused may appeal a conviction, an order against him, a verdict of unfit to stand trial, a verdict of not
criminally responsible, or sentence. In addition to a fine, or imprisonment, under Section 785 “sentence”
includes a driving prohibition (s.259), firearms prohibition (s.100(2)), discharge (s.730(1)), victim fine
surcharge (s.737), restitution order (s.738/739) and conditional sentence order (s.742.3).
The Crown may appeal an order that stays proceedings, a dismissal, sentence, a verdict of not criminally
responsible, and a verdict of unfit to stand trial.
B.
Conviction Appeals
To properly advise your client – and to conduct an appeal – it is vital from the outset to understand the
different Standards of Review. This phrase – “Standards of Review” – describes the test the appellate tribunal
will apply as it considers your arguments on appeal.
In theory, it is fairly easy to state the Standards of Review.
A question of law is a question about what the correct legal test is for that situation. As the Supreme Court
has noted, if the correct legal test requires the judge to consider A, B, C, and D, and he or she only considered
A, B, and C then he or she has erred in law (see Southam Inc. v. Director of Investigations and Research [1997] 1
S.C.R. 748). If you are alleging the judge erred in law – in either using or applying the correct legal test – then
the Standard of Review is “Correctness”. You must be able to convince the appellate court that the judge
below was “wrong” about the law. If the court agrees, you should win your appeal (unless the Crown
convinces the court the error was harmless: See Section 686(1)(b)(iii)).
1
A question of fact is an issue about what actually happened.
If you are alleging the judge erred in his or her understanding of the evidence or facts, your task is more
difficult, as the Standard of Review is one of “palpable and overriding error.”
“Palpable” means “plainly seen” or evident. As explained by the Supreme Court, “...one must be
able to ‘put one’s finger on’ the crucial flaw, fallacy or mistake.”
“Overriding” means that the error led to a wrong result. Such an error will only lead to a reversal
if “it discredits the result.” Even a palpable and obvious error of fact or law might be dismissed as
harmless if it is shown to have had no real impact upon the result. To succeed in challenging the trial judge’s
assignment of weight to evidence an appellant must demonstrate that the error led to or otherwise affected the
conclusion which was ultimately reached. (See Housen v. Nikolasien 2002 2 S.C.R. 235 at paragraphs 4 to 6
and L(H.) v. A.G. Canada 2005 CarswellSask 268 at paragraphs 55, 56, 69 and 70).
Appellate courts give triers of fact great deference and respect when asked to review a finding of fact. This
means that the higher court is likely to defer to and respect a trial judge’s treatment of any ambiguity or
uncertainty in the evidence. In other words, it is not enough that the accused (or his or her counsel) disagree
with the judge’s interpretation of the evidence: actual error must be demonstrated and it must then be shown
that this error led to a wrongful result.
The third area is also the most difficult to grapple with for appellate purposes. This is where the issue(s) is/are
one(s) of mixed fact and law. The Supreme Court has explained that “questions about whether the facts
satisfy the legal tests” are questions of mixed fact and law (Southam, supra). Here, the Standard of Review is to
be found on a spectrum of sorts: the closer the error is to the legal side of the “question of mixed fact and law”
the more likely the Standard of Review will be one of “correctness”. Where the error is said to be closer to
pure fact, the Standard of Review will be closer to “palpable and overriding error.”
C.
Sentence Appeals
Again, an appeal will not lie merely because the accused was punished more severely than he or she, or counsel,
feel is appropriate. Upon an appeal from sentence an appellate tribunal may intervene where the original
court
•
•
•
•
erred in principle,
gave undue weight to an appropriate factor,
failed to consider an appropriate factor, or
where the sentence is demonstrably unfit in that it is clearly unreasonable or excessive.
See R. v. C.A.M. (1996) 105 C.C.C. (3d) 327 (S.C.C.) and R. v. McDonnell (1997) 114 C.C.C. (3d) 437
(S.C.C.).
2
In this area, even more than in conviction appeals, appellate courts pay even more deference to the original
judge because sentencing is considered to be a discretionary decision.
In practice, at least one of the first three factors set out above must be demonstrated if a sentence appeal is
to have any hope of success, but the fourth factor must always be established. In other words, in addition
to showing an error of principle or improper weight being given to a factor, and so on, the Appellant must
also show that the resulting sentence is unduly harsh and excessive. Otherwise, the error is likely to be
dismissed as “harmless.”
D.
Interim Relief Pending Appeal: Bail, License Suspensions, etc.
Release Pending Appeal is governed by Section 679 of the Criminal Code which sets out three criteria to be
met before release can be considered.
Release pending appeal in a conviction appeal situation is governed by subsection 679(3), which says the
appellant must show three things:
• his appeal must not be frivolous
Our Court of Appeal has said this requires an applicant to “ only show that his or her grounds
of appeal would not necessarily fail”:
See R. v. Passey (1997) 121 C.C.C. (3d) 444 at 447 (Alta. C.A.); and
R. v. Effert 2006 CarswellAlta 1513 at para.s 5 and 6; (Alta.C.A.);
he will surrender himself into custody in accordance with the terms of the order
Much will depend upon any criminal record of the appellant, and his or compliance with any
release conditions governing his conduct before trial
•
And
•
his detention is not necessary in the public interest.
This arm of the test usually involves consideration of two main factors: public safety and any need to
protect society from further misconduct by the appellant; and the public perception of and respect for
the criminal legal process if release is granted.
See R. v. Farinacci (1993) 25 C.R. (4th) 350 at page 367 (para. 41) (Ont. C.A. - full court); and
R v. Colville 2003 CarswellAlta 529 at page 4, para.s 13 to 17 (Alta. C.A.);
The “public interest” factor also usually leads to a balancing of competing concerns: the public interest
in the enforcement of judgements weighed against the need for timely review of decisions and the
correction of errors before enforcement.
3