Appeals To Court of Appeal In Summary Conviction Matters Henceforth Require Full Argument For Leave To Appeal

Today’s decision in R. v. R.R., 2008 ONCA 497 raises an unexpected issue related to practice in criminal appeals.

The Criminal Code draws a distinction between appeals in indictable proceedings and applications for leave to appeal and, if leave is granted, appeals in summary conviction proceedings.

In indictable matters, the Court of Appeal provides the first level of appellate review, and the court’s jurisdiction is very broad. In summary conviction appeal proceedings, the Superior Court of Justice is the primary appellate court, and it has the same broad jurisdiction. Access to the Ontario Court of Appeal from these decisions of the Superior Court is restricted to questions of law alone and only if leave to appeal is granted.

Despite the very different statutory provisions governing indictable and summary proceedings, the vast majority of summary proceeding matters brought to the Court of Appeal proceed as if they were appeals as of right in indictable proceeding matters; the court does not address the question of leave to appeal as a discrete preliminary issue; rather, it simply lists summary conviction matters for oral argument before a panel of the court.

The application for leave to appeal and the appeal itself are addressed in the same proceeding. In oral argument, leave to appeal is sometimes not even mentioned (much less argued). Instead, counsel and the court generally proceed directly to the merits of the grounds advanced on behalf of the applicant/appellant. Often the argument focuses on alleged errors at trial and makes only passing reference to the reasons of the summary conviction appeal court. This court’s disposition is almost always based on the merits of the appeal and seldom alludes to the leave requirement.

In R. v. R.R., 2008 ONCA 497 the Court suggested this practice ought to change and leave should be argued separately from the appeal itself. This was only a suggestion and the Court did not change the practice of listing leave to appeal and appeal for a simultaneous hearing. That said the suggestion may well be accepted.

The Court did make it clear, however, that leave would henceforth have to be argued separately.

The Court writes:

[37] In summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables – the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty.

[38] Counsel should separately address the question of leave in their facta and, if necessary, in oral argument. The specific question or questions of law on which leave is sought should be clearly set out. The factors said to justify the granting of leave should also be clearly articulated. The respondent’s written material should also address separately the question of leave as a preliminary issue. It is also important that the leave application focus on the alleged errors made by the Superior Court judge. To properly fix the focus of the leave application, the material filed in this court should include the notice of appeal and the facta filed in the Superior Court. Generally speaking, this court should not entertain legal arguments that were not advanced at the first level of appeal.