DATE: May 20, 2008
SUBJECT: THE CRITERIA FOR COMMENCING APPEALS TO THE COURT OF APPEAL OF ALBERTA
The purpose of this guideline is to articulate the criteria to be considered in initiating, prosecuting, and discontinuing appeals to the Court of Appeal of Alberta.
INITIATION OF APPEALS:
An appeal or application by the Crown to the Court of Appeal of Alberta in a criminal or quasi-criminal proceeding requires the authority of the Attorney General or counsel instructed by the Attorney General. The Director of the Appeals Branch is counsel instructed by the Attorney General for this purpose. The procedure for initiating an appeal or application to the Court of Appeal is found in the Practice Memorandum: Procedure for Initiating Appeals to the Court of Appeal of Alberta.
The criteria for initiating appeals to the Court of Appeal are set out below. The governing principle in the decision to appeal on behalf of the Crown will be one of restraint. The appeal process is onerous both for the Crown and the accused. Furthermore, it is desirable that the Court should perceive that the Crown is launching appeals only where the appeals are meritorious. Consequently, the following guidelines have set out the minimum requirements that must be met before an appeal will be approved.
The Crown can appeal sentence with leave of the Court of Appeal or a judge thereof: see s. 676(1)(d) C.C. Having regard to the governing principle and established case law, an appeal against sentence will not be launched unless:
- it relates to a serious offence, or it relates to an offender who constitutes a serious threat to the community, or it is otherwise in the public interest; and
- one of the following conditions exist:
- the sentence is illegal;
- the sentence is clearly unreasonable; or,
- there are exceptional circumstances that require the guidance or direction of the Court of Appeal.
Invocation of Rule 853 of the Alberta Rules of Court (to contend on a defence appeal that the sentence should be increased) requires the authority of the Director of the Appeals Branch.
The Crown can only appeal against a verdict of acquittal on a question of law alone: see s. 676(1)(a) C.C. Having regard to the governing principles and established case law, an appeal against a verdict of acquittal will not be launched unless:
- it involves a question of law alone; and,
- the verdict would not necessarily have been the same if the error had not been made, and one of the following circumstances exist:
- the questioned decision establishes a legal principle adverse to the public interest;
- the error of law is determinative of a case that is so important that it is in the public interest that it be appealed; or,
- there are exceptional circumstances which justify an appeal.
(Note: the 30 day appeal period begins running from the date the acquittal ruling is made, not when proceedings on other charges are completed.)
Appeals of Decisions of Summary Conviction Appeal Courts
Appeals respecting summary conviction offences are heard by the Court of Queen’s of Alberta, sitting as a summary conviction appeal court. Decisions of the summary conviction appeal court can be appealed to the Court of Appeal, in the case of Criminal Code offences, with leave of the Court of Appeal or a judge thereof (see s. 839(1)(a) C.C.), and in the case of provincial statute offences, by obtaining a certificate of importance (see s. 18(1) Provincial Offences Procedure Act, R.S.A. 1980, c.P.21.5).
Having regard to the governing principle and established case law, an application for leave to appeal or for a certificate of importance will not be made unless:
- the Summary Conviction Appeal Court has erred on a question of law alone;
- there is a reasonable likelihood that a further appeal will be allowed on the ground(s) raised;
- the record from the court below is such that the issue can be fully and fairly determined; and
- if a new trial was ordered in the court below, it would be inappropriate to re-litigate the issue by way of a new trial (with attendant appeals) as opposed to an immediate appeal to the Court of Appeal.
In addition, the issue sought to be litigated on further appeal must be:
- the subject of competing or contradictory rulings in the summary conviction appeal court;
- one of importance to the administration of justice in Alberta; or
- one which, if not addressed, will result in a miscarriage of justice.
HANDLING OF APPEALS:
Carriage of all forms of appeals, applications, or motions to or before the Court of Appeal of Alberta, with the exception of bail review in the Court of Appeal prior to trial (s. 522(4)/680 Criminal Code), is the responsibility of the Appeals Branch. Crown prosecutors who are not members of the Appeals Branch may, with the consent of the Director of the Appeals Branch, have carriage of any appeal, application, or motion before the Court of Appeal of Alberta, but when doing so, are accountable to, and under the direction of, the Director of the Appeals Branch.
An appeal from acquittal shall not be abandoned without first consulting with the Director of the Appeals Branch.
An appeal from sentence shall not be abandoned without first consulting with the Director of the Appeals Branch, where circumstances permit.