Public Prosecution Service of Canada

www.ppsc-sppc.gc.ca

Common menu bar

• Français
• Home
• Contact Us
• Help
• Search
• canada.gc.ca

Breadcrumb

1. Home >
2. The Federal Prosecution Service DESKBOOK >
3. Chapter 23

The Federal Prosecution Service DESKBOOK

[ Previous | Table of Contents | Next ]

---

Part V
PROCEEDINGS AT TRIAL AND ON APPEAL
Chapter 23

---

23 APPEALS IN THE SUPREME COURT OF CANADA

23.1 Introduction

This chapter discusses the procedure for applications for leave to appeal, appeals, and interventions in the Supreme Court of Canada. It also discusses the preparation of facta and the role of the Supreme Court Co-ordinator.

Criminal appeals to the Supreme Court of Canada are governed by the Criminal Code, the Supreme Court Act and the Rules of the Supreme Court of Canada. By virtue of section 34 of the Interpretation Act, the Code provisions also apply to offences under other federal statutes.

23.2 Applications for Leave to Appeal

23.2.1 Crown as Applicant

The Attorney General of Canada, on the advice of the Litigation Committee¹ and the Deputy Minister, decides whether the Crown will apply for leave to appeal.

The Supreme Court grants leave only in those cases which raise questions of “public” or “national” importance². The Attorney General employs a similar test in determining whether leave should be sought. Hence, it is not enough to say that a decision from which leave to appeal may be sought is wrongly decided: counsel must be able to articulate the “national importance” of the issue(s). Appropriate cases may be, for example, ones which conflict with other appellate decisions, ones raising significant Charter or division of powers questions, or matters raising concerns about the scope of police or Crown powers³.

To begin the decision-making process, the Regional Office prepares a Ministerial briefing note⁴ for the Litigation Committee's consideration. The briefing note is sent to the Assistant Deputy Attorney General (Criminal Law), who decides whether to send it to the Litigation Committee. The note should be sent via the Supreme Court Co-ordinator⁵. If the Attorney General decides that the leave application should proceed, the Senior Regional Director⁶ assigns counsel to prepare the application. If the Court requires an oral hearing, counsel who prepared the memorandum of argument will usually appear.

As applicant, the Attorney General has 60 days from the judgment of the court of appeal to serve and file an Application for Leave. The documentation required for the application and the format in which it is to be presented are prescribed by Rule 23(1) of the Supreme Court Rules. Rule 23(1)(c)(ii) permits an affidavit to be filed in support of the Application. Although affidavits are usually unnecessary, they may be useful in cases in which the “national importance” is not readily apparent.

The Memorandum of Argument must be approved by the Assistant Deputy Attorney General before it is served and filed. Accordingly, the Memorandum should be forwarded to the Assistant Deputy Attorney General via the Supreme Court Co-ordinator no later than ten days before the filing date so that the Litigation Committee can be consulted if necessary.

23.2.2 Crown as Respondent

The Supreme Court Co-ordinator should be informed promptly of all leave applications in criminal cases where the Attorney General is the respondent. This is done in writing by the Regional Director, the Prosecution Group Head, or counsel on the file. A briefing note is generally not required.

Where the Attorney General is responding to an Application for Leave, counsel who appeared in the court appealed from will generally draft the Memorandum of Argument for the Respondent. However, the nature and importance of the issues raised may sometimes warrant assigning other counsel. The Assistant Deputy Attorney General will appoint counsel in these situations after consultation with the Senior Regional Director.

As respondent, the Attorney General has 30 clear days from receipt of the Application to serve and file the respondent's Memorandum of Argument. The Memorandum of Argument must be approved by the Assistant Deputy Attorney General before it is filed. Accordingly, the Memorandum should be forwarded to the Supreme Court Co-ordinator no later than 21 days after the Application is served.

23.3 Appeals before the Supreme Court

23.3.1 Crown as Appellant

Under paragraph 693(1)(a) of the Criminal Code, the Attorney General may appeal as of right to the Supreme Court on any question of law on which a judge of the court of appeal dissents. Where an appeal of this nature is proposed, the matter is treated no differently than cases in which leave to appeal must be obtained. The process described in s. 23.2.1 above therefore applies.

Once the notice of appeal is filed, the Senior Regional Director submits a memorandum recommending counsel to the Assistant Deputy Attorney General. The memorandum should provide both a short outline of the issues, and describe the relevant qualifications of the counsel proposed. The Assistant Deputy Attorney General then makes a recommendation on appointment of counsel to the Assistant Deputy Attorney Generals’ Committee⁷, which refers the matter to the Litigation Committee⁸.

The Supreme Court of Canada Act and Rules⁹ require a Notice of Appeal to be served and filed within 30 days of the judgment appealed from if the appeal is brought as of right, or within 30 days from the order granting leave. If there is too little time to complete the formal approval process before the filing deadline, a “protective” Notice of Appeal may, after consultation with the Assistant Deputy Attorney General, be filed before Ministerial approval is secured.

23.3.2 Crown as Respondent

Where the Attorney General is responding to an appeal as of right, the Regional Office shall send material essential to an understanding of the case (for example, reasons for judgment) to the Supreme Court Co-ordinator. The process for appointment of counsel is the same as that described in s. 23.3.1 above.

23.4 Constitutional Interventions¹⁰

In general, the Attorney General does not intervene to argue constitutional points on applications for leave to appeal to the Supreme Court of Canada. Indeed, leave is required to intervene for this purpose¹¹. However, once leave to appeal has been granted and the constitutional questions have been stated by the Court, the Supreme Court Co-ordinator or Charter Litigation Co-ordinator prepares a Ministerial briefing note concerning the issues raised in the case. The Litigation Committee reviews the note and, together with the Deputy Minister, advises the Attorney General whether to intervene in the appeal.

Supreme Court Rule 32 provides that a constitutional question is stated only where the appeal raises a question of:

1. the constitutional validity or the constitutional applicability of a statute of the Parliament of Canada or of a legislature of a province or of regulations made thereunder;
2. the inoperability of a statute of the Parliament of Canada or of a legislature of a province or of regulations made thereunder;
3. the constitutional validity or the constitutional applicability of a common law rule.

The Attorney General receives formal notice of such questions and may intervene as of right within the time frame provided in the order.

23.5 Other Interventions in the Supreme Court

The Attorney General is entitled to notification whenever there is a constitutional challenge to federal legislation. Parties to litigation are not, however, required to notify the Attorney General about certain other issues that may be of fundamental importance to the Government of Canada. Such issues typically include ones involving interpretation of the Charter of Rights and Freedoms or provisions of the Criminal Code, particularly recent amendments. If the Attorney General considers these issues of sufficient importance, leave to intervene can be sought under Rule 18 of the Supreme Court of Canada Rules.

Since the Attorney General does not receive formal notice of these issues, the Supreme Court Co-ordinator attempts to determine whether there are cases before the Court raising issues of concern to the Attorney General of Canada. Counsel in the Regional offices should also watch for significant criminal appeals to the Supreme Court to which the Government of Canada is not a party¹² and advise the Supreme Court Co-ordinator where the case raises issues of interest to the Attorney General of Canada. In appropriate cases, approval of the Attorney General will be sought to intervene.

23.6 The Factum

Facta sent for approval to the Assistant Deputy Attorney General must receive prior approval from the Senior Regional Director. In most regional offices, such approval is given only after the factum is approved by the Regional litigation committee. In many cases, it is appropriate to consult on the contents of the factum within the Department of Justice before submitting it for approval. The factum should be sent to the Assistant Deputy Attorney General at least 14 days before the deadline for filing, and is expected to be a polished work: persuasive in its reasoning, and without grammatical, typographical or citational errors. The Litigation Committee approves all facta before they are filed in the Supreme Court.¹³ Counsel should be conscious of the policy with respect to Official Languages in the preparation and translation of facta.¹⁴

23.7 Time Limits

Counsel appearing for the Attorney General before the Supreme Court should be aware of time limits set by the Supreme Court Rules. Following their appointment, counsel are provided with a checklist by the Supreme Court Co-ordinator. The checklist outlines various procedural steps, including limitation periods. The Appellant’s Record, Factum and Book of Authorities must be served and filed within four months of the filing of the Notice of Appeal. The Respondent's Factum and Book of Authorities must be served and filed within eight weeks of receiving the Appellant's Factum. The Intervener's Factum and Book of Authorities must be served and filed within four weeks of receiving the Respondent's Factum.

23.8 The Supreme Court Co-ordinator

The Supreme Court Co-ordinator organizes and tracks the Department's criminal cases in the Supreme Court. The Co-ordinator also advises counsel from Regional Offices on Supreme Court practice and acts as the point of contact for communications to and from the Court.

The Co-ordinator should be advised of all applications and appeals in which the Attorney General is participating in the Supreme Court. The Co-ordinator should also be advised of any other criminal matters of potential interest to the Attorney General that are on their way to the Supreme Court including important constitutional cases in the provincial appellate courts. The Co-ordinator should be sent a copy of all Ministerial briefing notes and memos pertaining to such cases, and any other information which will assist in tracking their progress, to ensure that they proceed in a timely and organized way. The Co-ordinator also acts as the contact person for referring matters to the Litigation Committee.

As noted in s. 23.7 above, the Co-ordinator provides assigned counsel with a checklist containing most of the routine information required to conduct Supreme Court appeals. The Charter Litigation Co-ordinator has prepared a helpful deskbook entitled “Supreme Court Practice and Precedents”, copies of which are provided to all litigation managers.

23.9 Appendix “A” - Appointment of S.C.C. Counsel

LITIGATION COMMITTEE POLICY ON THE APPOINTMENT OF COUNSEL TO APPEAR ON BEHALF OF THE ATTORNEY GENERAL OF CANADA IN THE SUPREME COURT OF CANADA

The Litigation Committee is responsible for recommending to the Attorney General the selection of counsel to appear on her behalf in the Supreme Court of Canada. The selection is based upon recommendations received from managers in the region (including the National Capital Region) in which the case arose and by the appropriate Assistant Deputy Attorney General.

It is an important and ongoing responsibility of the Attorney General and the Department of Justice to ensure that Canada is represented in the Supreme Court of Canada by experienced and well qualified counsel. In order to meet this responsibility, it is important for us not only to have our most qualified and experienced counsel from across the country play a leading role in the most significant cases, but that we provide opportunities for more junior counsel to gain experience and to develop the advocacy skills required so that they can assume that leadership role in future cases. In this way we can ensure that the Crown’s positions, now and in the future, will be advanced in a manner consistent with the highest standards of the profession.

A note of caution: This policy is directed at the factors to be considered by the Litigation Committee in the appointment of counsel to appear in the Supreme Court of Canada. The Committee is generally not involved in the selection of counsel to appear in trial courts, or even in the other appeal courts in Canada. The policy necessarily focuses on appellate advocacy skills. That fact should not be taken as an expression that trial advocacy is any less important to the Committee or to the Attorney General. The Litigation Committee expressly acknowledges the fact that trial and appellate advocacy skills are distinct qualities which are equally important. We must strive for excellence in both. The Committee encourages litigation managers to develop policies and practices aimed at developing the necessary trial and appellate advocacy skills of our practitioners.

Principles: The overriding principle in the application of this policy shall be the attainment of excellence in appeal advocacy - to provide top quality representation for the Federal Crown in our highest court. Other subsidiary principles that will guide the Litigation Committee are as follows:

1. the objective of gender equality and the reflection of Canada’s diversity in the counsel we appoint to appear in the Supreme Court;
2. the acceptance of the principle that regional counsel (including the National Capital Region) involved in the appeal before the appeal court below should continue to participate in the case before the Supreme Court, whether as lead counsel, co-counsel or junior counsel;
3. the targeting, identification and development of appellate counsel to appear before the Court.

Considerations:

The following considerations apply in the appointment of counsel to represent the Attorney General before the Supreme Court of Canada.

1. The Court’s limits on both oral argument and factum length also place a premium on written advocacy. Accordingly the ability to conduct high calibre research and superior writing skills are important factors in the selection of counsel along with superior oral skills.
2. Since the arrival of the Charter, appeal courts have become an important forum for establishing social policy. Counsel must be able (a) to articulate persuasive policy justifications for the position adopted on behalf of the Crown; and (b) to sensitize the Court to the ramifications of the other parties’ urgings.
3. Counsel must be fluent in the official language in which the case will be argued.
4. It is advantageous for a lead counsel in the Supreme Court to be familiar with the Court and its processes. Accordingly, counsel appearing for the first time in a leading role should have appeared previously with more experienced counsel in that Court.
5. Canada is a bijuridical nation. Cases that turn on a civil law point should be argued by counsel trained and qualified in civil law.
6. The lead in cases of great significance should be taken by our most qualified and experienced counsel.
7. We must renew and extend our litigation capacity through mentoring and junioring processes. The Committee and litigation managers have a responsibility in the development of counsel who have an interest in, and an ability to do, appeal work. Lead counsel must be committed to mentoring and working with junior counsel or assisting counsel. Litigation managers need to identify practitioners whose skills ought to be developed through opportunities to appear in provincial appeal courts and the Federal Court of Appeal and to assist in the Supreme Court. Interventions before the Supreme Court often afford an opportunity to assign counsel their first occasion to lead in the Supreme Court.
8. The client’s perspective must be considered. The importance of a case to a client might commend the appointment of a particular litigator to participate in an appeal. As well, client cost considerations should be factored into the decision. It may be more economic to ensure the continued involvement of counsel in a case that has been the subject of years of litigation, with complicated factual issues.
9. Subject matter expertise is an important consideration in deciding who should handle a particular case. The committee and litigation managers throughout the country share an obligation to develop a pool of counsel able to argue certain subject matters before the Supreme Court and other appellate courts.
10. Most of our cases in the Supreme Court require a high level of consultation with the office of the A.D.A.G., the client, legal services, Specialized Legal Advisory Services, the Policy Sector, Privy Counsel Office, the Litigation Committee and other stakeholders. To be considered for counsel appointment, especially as lead counsel, individuals must be committed to a consultative approach to litigation. The foregoing does not derogate from the independent roles of the Attorney General in criminal prosecutions (Federal Prosecution Service Deskbook, Part I, Chapter 4) and civil litigation (Civil Litigation Deskbook, Chapter A-1).

September 8, 1998

[ Previous | Table of Contents | Next ]

Primary navigation (left column)

Date Modified:

2008-12-24