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3. Chapter 22

The Federal Prosecution Service DESKBOOK

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Part V
PROCEEDINGS AT TRIAL AND ON APPEAL
Chapter 22

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22 THE DECISION TO APPEAL

22.1 Introduction

This chapter explains the criteria the Attorney General of Canada applies in deciding whether to appeal an acquittal or sentence. It also identifies who should make the decision to appeal on behalf of the Attorney General and the process for deciding.

22.2 Placing the Crown's Right to Appeal in Context

The authority to appeal in criminal proceedings comes entirely from statute.¹ Common law appeals against conviction or acquittal did not exist.² In Canada, even accused persons had no effective right of appeal until 1923.³ In 1930, an amendment to the Criminal Code permitted Crown appeals against an acquittal, though only in cases raising a “question of law alone”.⁴ While the basis for Crown appeals has since been further defined in the Code, essentially the Crown is still limited to raising legal, not factual, issues.⁵

Canadian appellate courts viewed Crown appeals as an extraordinary remedy, in some cases suggesting that the 1930 amendment was regrettable.⁶ For example, in 1939, a member of the Supreme Court of Canada described the 1930 amendment as “drastic”⁷. A year later the Supreme Court dismissed a Crown appeal on jurisdictional grounds, noting that the Code section permitting Crown appeals should be interpreted narrowly.⁸ In 1949, Rand, J. observed in Cullen v. The King⁹ that the amendment provided “a striking departure from fundamental principles of security for the individual”:

Two conclusions emerge from this historical overview. First, the 1930 amendment provided an extraordinary remedy. It created an exception to the general rule that no person should be tried twice on the same charge. Second, over the past 60 years, the courts have signalled the need to show restraint in exercising the right to appeal. Only cases that the public interest requires pursuing should be appealed.

22.3 Statement of Policy

Not every unfavourable ruling or error in law should be appealed. Neither the courts nor the Crown has the resources to review every judgment that appears to be wrong. Still, the public expects and is entitled to a criminal justice system that is applied consistently and is effective in the suppression of crime.

Two issues must therefore be considered when deciding whether to appeal. First, is there a proper basis, both in law and on the facts, to believe that the judgment is wrong? If there is, does the public interest require an appeal?

These criteria are similar to those for deciding whether to prosecute, but with two important differences. First, since the facts have already been established at trial, it is important to ensure that significant questions of law are litigated on the basis of a proper and compelling record of evidence.

Second, because of the need to be selective in bringing appeals, the public interest plays a much more important role in the decision to appeal than it does in deciding whether to lay charges. In most potential appeals, the controlling principle is whether the public interest requires an appeal.

Factors which may be considered when deciding whether the public interest requires an appeal include the following:

1. Is the issue raised by the case of widespread importance for the effective enforcement of the criminal law, or is its impact confined largely to the immediate case?
2. Does the seriousness of the offence or the circumstances of the offender demand a reconsideration of the case?
3. Have courts differed in interpreting the issue raised?
4. Could the decision impair the effective enforcement of the criminal law if left unchallenged?
5. Could the trial decision impair the enforcement or administration of a significant government policy initiative (for instance, confiscating the proceeds of crime, reducing domestic violence) if left unchallenged?
6. Will the resources required to prepare and present the appeal significantly outweigh the value of pursuing the case further?¹¹
7. Is there a reasonable prospect that the appeal court may award costs against the Crown even if the appeal has merit?
8. In sentence appeals, was the sentence clearly below the acceptable range of sentence (and not merely at the low end of the acceptable range), so that a successful appeal should lead to a significant increase in sentence?¹²

The application of and weight to be given to these and other relevant factors will depend on the circumstances of each case.

Public expressions of concern do not in themselves provide a proper basis for bringing a review at the instance of the Attorney General. However, where the arguments for and against appealing are evenly matched, the expression of a strong public concern for a further review of the case may tip the scales in favour of an appeal.

22.4 Guidelines for Application of this Policy: Who Decides to Appeal, and How?

In general, the decision to appeal to a provincial or territorial court of appeal should be taken by or on behalf of the Regional Director, with the advice of the Group Head or a Regional appeals committee. Agents must seek the instructions of the Regional Director or the Group Head before filing a notice of appeal.

Appeals raising significant public interest considerations should first be discussed with the Assistant Deputy Attorney General (Criminal Law). The decision to appeal to the Supreme Court of Canada, discussed in Part V, Chapter 22, is made by the Attorney General personally on the advice of the Litigation Committee. Departments responsible for enforcing federal statutes (for instance, the Canada Customs and Revenue Agency in tax cases) should, wherever possible and if limitation periods permit, be consulted before filing a notice of appeal. Their advice will often be helpful in deciding whether an appeal is in the public interest.¹³

Crown counsel may sometimes need to file a “protective” notice of appeal before consultations are completed and a final decision is taken about proceeding with the appeal.¹⁴ Protective notices should be the exception, not the rule, since counsel are obliged to bring significant adverse decisions to the attention of their superiors so that appropriate and timely action can be taken. Counsel should ensure that a final decision is made as soon after filing the notice as is reasonably practicable.

22.5 Irrelevant Criteria

A decision whether to appeal must not be influenced by any of the following:

1. the race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any other person involved in the case;
2. Crown counsel's personal feelings about the accused, the victim, or the trier of fact;
3. possible political advantage or disadvantage to the government, special interest group or political party; or
4. the possible effect of the decision on the personal or professional circumstances of those responsible for making the decision to appeal.

22.6 Conceding Appeals

The Crown is much more frequently the respondent than the appellant on criminal appeals. On rare occasions, appellate counsel may be placed in a situation in which an error of law committed by the trial court is so clear, or the findings of fact so patently unreasonable, that it may raise the possibility that the appeal ought to be conceded. This may arise, for example, in a case where a decision by the Supreme Court of Canada subsequent to the trial but prior to the appeal completely undermines the basis for conviction.

The decision to concede an appeal or to concede on a particular issue¹⁵ within the appeal is never one that can be taken lightly. Conceding an appeal will impose additional burdens on the investigative agency, witnesses, and the courts if a new trial will be required. As a general rule, Crown counsel's duty is to advance all reasonable arguments that may be made to support the decision of the court below, and to leave it to the appellate court to decide whether to allow the appeal. ¹⁶

Generally speaking, it is within the discretion of appellate counsel to concede on a particular issue in an appeal without conceding the appeal itself, where there is no reasonable argument to be made on that issue. Where that issue concerns the constitutional validity of federal legislation, however, instructions must be sought from the Department's Litigation Committee.¹⁷

Appellate counsel may also be called upon to exercise a discretion with respect to the admission of fresh evidence on appeal. The admission of such evidence is governed by the well-known four part test consistently used by the Supreme Court¹⁸. Counsel may well choose to consent to the admission of such evidence where it raises a substantial concern about an offender's innocence.¹⁹

Where counsel is of the view that an appeal ought to be conceded, further consultation is necessary. Before making such a recommendation, appellate counsel should seek the views of the trial counsel and, where appropriate, the investigative agency. The decision should be discussed with the Group Head, and the Regional Litigation Committee. Where the concession is in significant case²⁰, consultation with the Departmental Litigation Committee will be necessary.

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Date Modified:

2008-12-24