35
Grounds of
Appeal
3
I. Introduction.............................................. 36
II. Questions of Law ......................................... 37
A. Unreasonable Verdict................................. 37
B. Inconsistent Verdicts ................................. 39
C. Inadequacy of Reasons ............................... 40
D. Errors in Instructions to the Jury . . . . . . . . . . . . . . . . . . . . . . . . 41
E. Jury Selection Issues ................................. 45
F. Reasonable Apprehension of Bias....................... 45
G. Evidentiary and Other Rulings.......................... 45
III. Questions of Fact and Mixed Law and Fact ..................... 46
A. Misapprehensions of Evidence ......................... 46
B. Challenges to Findings of Credibility..................... 47
IV. Questions That Are Neither Law nor Fact ...................... 47
V. Raising New Issues for the First Time on Appeal ................ 50
Copyright © 2025 Emond Montgomery Publications. All Rights Reserved.
36 Criminal Appeals
I. Introduction
In appeals of indictable oences, a convicted criminal defendant has a statutory right to
appeal the conviction only on a ground of appeal that involves a question of law alone.
Appeals based on grounds involving questions of fact, or mixed questions of law and
fact, are not appeals as of right, but require leave to appeal. A convicted criminal de-
fendant can also, with leave, appeal on any other ground of appeal (a ground other than
a question of law, question of fact, or question of mixed law and fact) if it “appears to the
court of appeal to be a sucient ground of appeal.”1 Appeals by the Attorney General
from acquittals are permitted only on grounds that involve a question of law alone.2 The
Crown cannot appeal acquittals on the basis of questions of fact, or mixed fact and law.3
The classification of a ground of appeal as a question of law or a question of fact
often determines the standard of review that the court will apply when deciding the
appeal. In general, questions of law will be reviewed on a correctness standard, whereas
questions of fact or mixed law and fact will attract the more deferential standard of
review of reasonableness.4 This is not always the case. Some questions of law, often
those that impugn decisions involving the trial judge’s discretion, will be considered on
the basis of a reasonableness standard.5 Still, in most cases it will be to an appellant’s
advantage to frame the grounds of appeal, where possible, as questions of law.
As discussed in Chapter 2, Procedural Steps in an Indictable Appeal, the proposed
grounds of appeal are a required component of a notice of appeal. Therefore, the
appellate lawyer is called on to articulate grounds at the earliest stages of the appeal
process. When a transcript is not available within the time period for filing the notice
of appeal, as often will be the case, information about the proceedings in the court
below provided by the client or the trial counsel may assist in determining the pro-
posed grounds of appeal. Upon review of the complete trial record, the notice of
appeal may be amended, and grounds added or abandoned.6 By the time the appeal is
1 Criminal Code, RSC 1985, c C-46, s 675(1)(a).
2 Criminal Code, s 676(1)(a).
5 One example of a question of law attracting a reasonableness standard of review on appeal is a
challenge to a trial judge’s s 24(2) Charter ruling on the admissibility of evidence obtained in
a manner that infringed Charter rights. See R v McGue, 2016 ONCA 365 at para 64.
6 The Rules of the Court of Appeal of Quebec in Criminal Matters, s 38(b) provides that, in their
brief, respondents may raise any further questions of law that they intend to argue, including
those questions that the trial court rejected or did not consider. The rules do not require an
amendment to the notice of appeal. If, however, the new question raised is one of fact, leave to
appeal will be required. Rules of the Court of Appeal of Quebec in Criminal Matters (in force 11
March 2024), online: <https://courdappelduquebec.ca/en/procedure-notic es-and-forms/
rules-in-crim inal-matters-coming-into-force -march-11-2024/rules-in-criminal-m atters>
[Quebec Rules in Criminal Matters].
Copyright © 2025 Emond Montgomery Publications. All Rights Reserved.
