597
Sexual Oence
Appeals
18
I. Introduction..............................................
II. Launching an Appeal ......................................
III. Bail Pending Appeal .......................................
IV. Perfecting the Appeal ......................................
V. Common Grounds of Appeal in Sexual Oence Cases............
VI. Fresh Evidence............................................
VII. Appeals to the Supreme Court of Canada ......................
VIII. Complainant Rights of Appeal ...............................
IX. Crown Appeals ...........................................
This chapter was authored by Lindsay Board.
© 2024 Emond Montgomery Publications. All Rights Reserved.
598 Prosecuting and Defending Sexual Oence Cases
I. Introduction
This chapter will review the practice and procedure for appealing a conviction and/
or sentence in sexual oence cases. The focus will be on defence appeals. Because
convicted oenders have an automatic right to appeal their conviction at first instance
in most cases, this right is routinely exercised given the significant jeopardy, personal
and professional consequences, and stigma associated with a conviction for a sexual
oence. Crown appeals, on the other hand, are less common and tend to be brought
in cases that are particularly meritorious and in the public interest.
Although by no means an exhaustive summary of the various issues and complexi-
ties of the appeal process, this chapter highlights some of the most common features
of a sexual oence appeal.
II. Launching an Appeal
After a trial is completed, the Crown or the accused can appeal either a conviction
or sentence imposed by the trial court. The first step is determining the appropriate
venue for the appeal, which is dictated by whether the Crown proceeded summarily
or by indictment.1
A. Indictable Appeals
Indictable appeals are governed by part XXI of the Criminal Code and the rules and
practice directions of the appeal court in each province or territory. When the Crown
prosecutes an oence by indictment, an appeal lies to the court of appeal for the
province or territory in which the trial was held, regardless of the level of court in
which the case was originally heard.2 The person initiating the appeal is referred
to as the “appellant,” and the opposing party is the “respondent” on the appeal.
Appellants can appeal against their conviction as of right on “any ground of appeal
that involves a question of law alone.”3 Where the convicted person is the appellant,
they require leave to appeal against a conviction if the ground of appeal involves a
question of fact or a question of mixed law and fact,4 although in practice, this leave
requirement is ignored and rarely mentioned. The Crown’s right of appeal is limited
to questions of law.5
1 Sections 683 to 689 (excepting ss 683(3) and 686(5)) of the Criminal Code, RSC 1985, c C-46,
regarding the powers of an appeal court, apply to both indictable and summary conviction
appeals: Criminal Code, s 822. In the rare case that a summary conviction oence is tried
together with an indictable oence, the court of appeal can hear the summary conviction
appeal together with the indictable appeal, with leave: Criminal Code, s 675(1.1).
2 Criminal Code, ss 2, 673.
3 Criminal Code, s 675(1)(a)(i).
4 Criminal Code, s 675(1)(a)(ii).
5 Criminal Code, s 676(1)(a).
© 2024 Emond Montgomery Publications. All Rights Reserved.
