DATE: May 20, 2008
SUBJECT: THE CRITERIA GOVERNING AND APPROVAL NECESSARY FOR APPEALS RESPECTING
SUMMARY CONVICTION OFFENCES
The purpose of this guideline is to articulate the criteria to be considered and the approval required prior to the initiation of appeals to the Court of Queen’s Bench in respect of summary conviction matters
INITIATION OF APPEALS:
The criteria for initiating appeals to the Court of Queen’s Bench 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 against a sentence passed upon a defendant: see s. 813(b)(ii), 822(1) 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,
- the proper administration of justice in the particular locale requires that the sentence be appealed.
The Crown can appeal against an order that dismisses an information or stays proceedings. The Crown may appeal as of right on any ground, including errors of fact and, unlike appeals in matters that proceeded by indictment, is not restricted to errors of law: ss. 813(b)(i), 822(1) C.C., E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed. (Aurora: Canada Law Book, 2001) volume 2, at 24:1070; R. v. Antonelli (1977), 38 C.C.C. (2d) (B.C.C.A.); and R. v. Melnychuk,  S.J. 385 (Q.B.).
Having regard to the governing principles and established case law, no appeal against an acquittal or a judicial stay of proceedings will be approved unless:
- it involves a question of law, a question of jurisdiction, or the decision is unreasonable and unsupported by the evidence; and
- a reasonable argument can be made that the verdict would not necessarily have been the same if the error had not been made, and
- mindful of the factors set out in the Code of Conduct for Crown Prosecutors and the guideline The Decision to Prosecute the public interest requires an appeal.
APPROVAL OF SUMMARY CONVICTION APPEALS:
Chief Crown Prosecutors may commence or instruct the commencement of appeals in the Court of Queen’s Bench.